Spousal Support Modifications: How Long Does it Take?

Posted by: Gerald A. Maggio, Esq.

orange county spousal support; The Maggio Law FirmSometimes, long after a divorce settlement has been arrived at, and many months of alimony paid out, there may come a need for changing the amount or terms of the spousal support. But how long does this kind of change take? And what are the things you need to have ready to ensure things move along smoothly?

Time taken for pre-divorce spousal support judgments vs. modifications

Spousal support modification needs you to go through a similar set of processes and steps as the procedure followed for the initial support order/judgment during the divorce. And the reason behind the need to follow the same procedure, is that by suggesting there is a need for changes to the judgment already in place, you or your ex believe that something has changed. In other words, the financial situation or circumstances have deviated quite drastically from the time the divorce came through. Which means that you will need provide proof of the new economic situation on either side, the need for the change, and urgency for such a change.

Unlike the original process which may have taken anywhere from six months to a year, the modification can be a little quicker in some cases. Especially if there was a clause in the original order that required say ‘$1000 to be paid with a review in 5 years’, then the process is smoother and therefore, faster.

Why it takes time

A spousal support modification doesn’t happen overnight. Hard though it might seem, having jumped through hoops the first time around, you can bypass any of the steps for the change. In fact, you will need to ensure you provide adequate cause for modification of the terms, a ‘material change in circumstances’. Even if the initial agreement did not prevent modifications, a judge may show some reluctance to make a change if the spousal support payments had bearing on how the other aspects of the agreement were settled.

In addition, if your ex disputes their income status or expenses, or contests the change, you will need to first make a case or settle the dispute or let a judge decide as your attorneys battle it out in court.

Changing spousal support in emergencies

There are two scenarios where the spousal support modifications may need to be dealt with more urgently. If you are in a tight spot, having lost your job and have alimony payments that are due shortly, be sure to raise this with your attorney so that they do not accumulate as huge arrears due to your ex when you do get a job. If you are the spouse receiving the support, and have a huge change in your situation, medical emergencies or other reasons for needing a fast change to the amount you get, again, you will need to be sure to flag this off upfront, although courts often find financial issues to be non-emergencies if an ex parte request for relief is sought.  Be sure to consult your divorce attorney to fully understand your options.

A Quick Guide to Modifying Child Support Payments

Posted by: Gerald A. Maggio, Esq.

Divorce attorneys in Orange County; The Maggio Law Firm, Inc.Whether you’re the spouse paying alimony and child support to your ex, or the one receiving it, there may come a time when you find the numbers you had decided on are no longer feasible and need an update. Here’s a quick guide to how you can modify child support payments – upward or downward, depending on your needs.

Asking for more

At the time of your divorce settlement, you made certain assumptions on likely expenses and how much help you would need from your ex by way of child support. The reality of life after divorce can often be far removed from what you had imagined and you may well find yourself hit with bigger bills and more expenses, especially if you are the primary caregiver for your child. Whether you simply discover that expenses are higher, or whether rising costs or a change of school or after-school activities have seen the cost of bringing up your child go up, you may need to reach out for some help. In some cases, you might find yourself out of work or facing a dip in your business as a consultant or freelancer and need your child support payments to go up.

Dealing with unexpected layoffs or pay cuts

With an economy that’s less than perfect, a lot of businesses are cutting back on raises and promotions. If you’re divorced and find yourself in the unfortunate position of having your pay cut, or are unlucky and find yourself laid off, then there may be an immediate need to modify your child support payments. Failure to do so will result in your missed payments as being marked as arrears that you will need to pay up at a future date. Child support orders cannot be modified retroactively beyond the date that you file for your modification with the court.

How to make changes to the payments

First off, you will need to provide proof of the changed circumstances. If you have lost your job or are drawing a lower income, this is easily proven with necessary documentation. If you have had to cut back on work due to health issues, medical documents backing this up will be needed. For additional expenses, you will need to prove that the added costs are unavoidable or absolutely necessary for the good of your child.

Once you are sure you have the supporting documents ready, file a Request for Order (RFO) with an Income and Expense Declaration (needs vary by state).  Remember, exceptions to this are lump sum alimony payments or property division. These cannot be modified or added to once they are agreed upon.

Orange County Spousal Support: All You Need To Know

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyer; The Maggio Law FirmSpousal support, or alimony, is the legal obligation to financially support your spouse following the dissolution of your marriage. The concept of spousal support was created to help the spouse who earns lesser pay or has been unemployed to become self-supporting.

Kinds of spousal support 

If you seek spousal support while your case is in process, it will be known as a “temporary spousal support order.” It will be called “permanent spousal support” if the court case and divorce has been finalized.

Calculating spousal support

In the courts of Orange County, judges refer to the factors listed in the California Family Code to determine how much spousal support is required as they decide the final spousal support order. The factors mentioned include:

  • The duration of the marriage.
  • The standard of living each person maintained while being married and the needs based on that.
  • The amount of money each person can afford to pay to maintain the standard of living while they were married.
  • Property and debts, if any.
  • If there were any instances of domestic violence during the marriage.
  • If one spouse had to quit their career to care for the children or the household.
  • The impact spousal support would have on the payer’s taxes.

The long-term spousal support depends on the duration of the marriage and the goal of the idea is to ensure that the spouse will be able to support themselves after a reasonable amount of time. The judge need not fix an end-date for the spousal support if the duration of the marriage was “long-term,” which is 10 years or longer.

Domestic violence and its impact on spousal support 

If there has been any recorded evidence of domestic violence, the judge will take into consideration these details before the final decision has been made. If the abusive spouse is paying the spousal support, the judge will declare that any distress that was faced by the other spouse due to the violence must also be supported.

Once the court order has been published, the spouse must continue paying the alimony until a change has been declared by the court or until the end-date mentioned in the order. In Orange County and California in general, if you fall behind on your spousal support payments, you will have to pay 10% interest per year on the due balance which is known as “arrearages.” You can also be held “in contempt of court” if you are found to be willfully not paying the alimony.

How To Avoid Crippling Amounts In Spousal Support

Posted by: Gerald A. Maggio, Esq.

Divorce attorneys in Orange County; The Maggio Law FirmAlimony is not an entitlement. Ultimately, it is up to the discretion of the judge to decide on the final amounts so you might find yourself in a position where you do have to pay spousal support, sometimes more than you want to. Income is not the only criteria to decide on alimony or spousal support amounts. This depends on over a dozen factors in most states. As important as income is the spousal need. However, if you have done all your groundwork right and worked with good divorce attorneys and a reliable divorce mediator, you should end up with a fair deal.

Hiring a professional

DIY divorces may seem like a good idea at the time, saving you any outflow on lawyers. A caveat here is that while you could navigate the complicated filing yourself, the next steps aren’t as easy as you would imagine. negotiations are something experienced divorce attorneys are well trained in and extremely good at. They will serve your best interests at the negotiating table and will not let emotions derail the process. Without their counsel and skill, you may actually end up paying more in spousal support the long run and wipe out any savings you might have made during the divorce process.

Get a divorce attorney you can trust

Soldiering on with a divorce attorney or team you don’t think is good enough is not a good idea. If you feel your attorney is not what you expected or is incompetent – switch. Fail to do that and you may end up with a raw deal on spousal support and find yourself bogged down with huge payments. A divorce attorney who doesn’t have your best interests at heart will happily stand by and watch divorce mediation deteriorate waiting for the case to head to courts to rack up big legal bills for you.

Work with a divorce mediator

A divorce mediator will help you work out the gray areas. While basics like rent, food and clothing will be taken care off, it is the ‘extras’ like out of pocket medical expenses that you will need to negotiate on. By deciding on these areas out of court, you are much more in control and have a say in the final agreement. Not to mention the saved legal expenses. If you take your case to court, you will need to leave the decision on alimony to the discretion of the judge and lose that control you have.

Don’t forget about the taxman

There’s a third person in this divorce who is often ignored when working through financials. Be sure to consider all tax implications of whatever arrangement you come to on spousal support.  If you don’t you may find yourself paying crippling amounts of taxes and living off very little even though the actual spousal support amount was what you had agreed on to begin with..

Discuss a time limit or other alimony options

Explore the option of temporary alimony to help you spouse get back into the workforce or stabilize financially. In some cases, a lump sum alimony may be what works better for you – discuss this option with your divorce attorney and financial adviser. Agree on a timeframe for alimony payment even if it is not court mandated.

Think of alternatives

You don’t always need to pay out huge sums in spousal support if you can come to some other agreement,. For instance, your spouse may be okay to accept a lower or temporary alimony if they get to keep the family home.

How Can A Father Get Child Support From A Mother?

Posted by: Gerald A. Maggio, Esq.

best divorce attorneys in Orange County; The Maggio Law FirmWhen couples decide to divorce, there are certain aspects that they need to take into account. One of them is the issue of child support. It is typically believed that child support is paid by the father of the child to the mother to take care of the child and to cover all the expenses that occur in that respect.  However, much like child custody not being limited to a mother, being the greater earning spouse or the spouse that the other depends on financially is not limited to a father when it comes to child support.

Both a mother and a father can be the one earning the cash before the couple got a divorce and hence it is entirely possible for a father to get child support from a mother.

Who Is Entitled To Child Support?

Neither a mother nor a father is guaranteed to receive child support at the outset. Who receives the child support will largely depend on the parent who has the primary custody of the child and the income of the parties. So for a father to be in a position to get child support order in their favor from the family law court, they may need to have primary custody of the child and likely also earn less than the mother.

Getting Primary Custody

The first step in getting child support for a father will need them to get primary custody of the child.  The family law court will decide on the parent who gets to keep the custody of the child and make the important decisions based on the best interest of the child.

Proving That You Lack The Requisite Finances

It is one thing having the ability to give the child the life that is in their best interest and quite another actually providing it. If you were financially dependent on the child’s mother for the running of the household during the time you were married. You will need to prove that to the court. Once the court is satisfied with this notion they will look to an estimate of the child’s expense, your earning if any and the earning of your spouse and their expenses before passing the child support order based on that.

When A Forensic Accountant Is Needed in Divorce Cases

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyers; The Maggio Law FirmEnding a marriage and a lifelong relation is never easy. It involves a number of different complex issues that are often interconnected. People believe that the process of getting a divorce is one that only involves your divorce lawyer and no one else. However, that is not entirely the case. More often than not there are situations where a divorce lawyer will need to take the help of a professional accountant to solve the complexities of the case, etc.

The role of forensic accountants in an Orange County divorce case is often underestimated and few people recognize the importance that they have. Often the first question that is asked when an accountant is called in a divorce case is why you need a forensic accountant in a divorce case.

Why are Forensic Accountants Needed?

  • There are often situations especially in terms of child support determinations where the amount that each of the spouse earns is hard to determine. Often in cases where both the spouses are self employed such a situation may arise. Here the use of forensic accountants will ensure that they do an income analysis to determine the correct amount of child support that needs to be paid.
  • They can also be used by the parent who has been handed a high child support payment. Who can make sure they provide their income analysis to back their claim of an unfairly high child support amount that should be reduced.
  • Similar to child support, even in issues of spousal support it can be hard to determine the correct spousal support payment. Here once again the use of income/cash flow analysis will be made by the forensic accountant to determine the correct amount.
  • For self-employed spouses that own their own business entities, it will be hard for the courts to gauge the valuation of the business and its assets. A forensic accountant knows the appropriate methods used to determine the value of a company and will outline that value to the court.
  • In a number of cases separate property and community property are not kept apart from one another and they are often either mixed together or used side by side. Here, tracing of what and what proportion originates from the community property and what originates from the separate property can require an expert determination from a forensic accountant.

Strategies To Reduce Spousal Support After Divorce

Posted by: Gerald A. Maggio, Esq.

Divorce attorneys in Orange County; The Maggio Law FirmWhen couples go through a divorce, one of the two spouses that are dependent on the other financially is awarded spousal support. The concept behind spousal support is to ensure that the standard of living experienced during the marriage is maintained to a reasonable extent post-divorce.

Is the court order at the time of divorce the final order, fixed for life and set in stone or are there some ways that a person can look to reduce the spousal support that is awarded to the other spouse? The answer is that yes, spousal support can be reduced.

The first step is to understand and analyze the spousal support order

If you are planning to go to court and apply for a modification request, you first need to read and understand the spousal support order. You cannot simply go to court with a modification request on the original spousal support order not knowing what it is and hope that the courts rule in your favor.  Take a look at the support order, analyze it and check what if any provisions for modification (or non-modifiability) are outlined in the order.

The second step is to analyze the change of circumstances of your spouse since the last order

One of the most important reasons for a modification or reduction in spousal support is largely dependent upon the changing circumstances of spousal support. Changing circumstances simply means how the current condition of the spouse is different from when the spousal support was ordered. There are many types of such changes. Some of the most common ones are:

  • You income having fallen below the level that it was when the spousal support was ordered
  • There has been a significant increase in the income of your ex-spouse who is receiving spousal support
  • Your ex-spouse has started to cohabitate with another member of the opposite sex

The last step is proving your claim through evidence

The first and the second step come down to how well you perform in this step. Once you have identified having had a change of circumstances and analyzed what the order asked you to do and what not to do. What you need to see is whether your grounds of circumstances are actually true. This needs to be shown through proper documents which can include financial documents and testimony.

Getting Your Spouse to Work With A Motion for Vocational Examination

Posted by: Gerald A. Maggio, Esq.

divorce lawyer in Orange County; The Maggio Law FirmIf your spouse is not working or not working to his or her full earning capacity, you can request that a vocational examination of that spouse to be conducted.  However, the parties have to agree to it or otherwise the spouse seeking to have one done needs to have the court’s permission in order to proceed with this form of discovery.

Filing A Motion to Request That Your Spouse Submit to a Vocational Evaluation

If your spouse will not voluntarily submit to a vocational examination, your attorney may file a motion to require your spouse to submit to a vocational examination.  The party seeking a vocational evaluation will need to file a motion and show good cause to have such vocational evaluation be conducted by a professional expert.  Generally, the court will grant the request for the vocational evaluation, particularly if the party that is seeking the evaluation is paying for the evaluation.  Such evaluations generally run $2,000-3,000 on average. However, the cost is generally worth it, as the findings of the vocational evaluation can be used for settlement negotiation purposes and otherwise at time of trial.

Using The Findings of Vocational Evaluations

While the court may not actually force your spouse to work, if the vocational evaluator makes a finding that your spouse has an earning capacity, the court can “impute” income for support calculation purposes. In other words, the court can assign fictional income to your spouse (or a higher income than they are presently earning) when calculating child or spousal support.

If you have concerns about your spouse’s earning potential, contact The Maggio Law Firm to discuss the issue of seeking a vocational examination of your spouse and taking the next steps to ultimately ensure that the fair amount of support is paid under the circumstances of your case.

Spousal Support (Alimony) for Dummies

Posted by: Gerald A. Maggio, Esq.

Divorce attorneys in Orange County; The Maggio Law FirmGoing through a divorce is not the most pleasant experience to go through to say the least. You can go through dire emotional, financial and at times physical stress that can take its toll on you in the long run. If going through a divorce wasn’t hard enough, there are a number of things that you need to deal with and understand when as you divorce.

Spousal support, child support, child custody, child visitation etc. are one of the few common aspects of a divorce that you need to understand about alimony, also known as spousal support.

What is alimony?

Alimony is basically the previous name given to the current concept of spousal support. As the name spousal support would indicate, it is a support payment that is paid to the dependent spouse by the sole earning or higher earning spouse after they have had a divorce.

The concept of spousal support or alimony is simple, it is intended to provide financial safeguard to a spouse who was dependent on the other spouse for their finances and divorce has suddenly left them with no financial avenue to depend on. In such situations, the family law court will set a particular amount that would need to be paid by the financial independent spouse to the financially dependent one.

How much alimony will I get?

Alimony is not like child support. Child support has set rules for compensation to be paid, alimony payments on the other hand have no such rules set. In terms of spousal support payments the scope of discretion is wide for the judges to decide the amount. The factors of spousal support and the conditions that the judges will take into account when deciding on the spousal support amount differ from state to state.

In the Orange County family law court, judges will look at a number of factors such as:

  • The number of years the couple has been married
  • The standard of living that the couple was enjoying
  • The financial dependence of one spouse on the other
  • The needs (not wants) of the spouse in terms of finances post divorce

Will I have to pay spousal support if I earn more?

The guidelines of spousal support vary from state to state. Usually if you earn more than the spouse the courts will look at the difference between the two earnings and whether or not their expenses or needs are more than what they earn. The judges will take a look at this before deciding if the higher earning spouse has to pay some sort of alimony and if they do, what is the amount that needs to be paid.

The Dilemma of Stay-at-Home Moms After Divorce

Posted by: Gerald A. Maggio, Esq.

Child custody attorneys Orange County; The Maggio Law FirmPost divorce, stay-at-home moms, or ex-housewives in other words, face the dilemma of whether to get a job or not. This can cause high levels of anxiety and stress developing in them. The primary reason for this is that most of the moms, even those that had been employed pre marriage, would have been out of the game so to speak for too long. This makes them initially dependent on their husbands for financial support.

In this blog, we will talk about the impact of getting a job on the care and well-being of their children and on the support payments that they are receiving.

The Challenge of Balancing Children and Work

Raising a child can be a fulfilling but tiring experience. Balance that with holding a job for person who has been out of employment for a long time and it becomes an uphill challenge at the very least.

In today’s world, a college degree has become a norm and people are applying for jobs they are over-qualified for, just to make sure they are employed. In this situation, what are the odds that a stay at home mom who have undergone an Orange County divorce will be able to carve out a job?

Yet most of this largely comes down to a few factors. These factors determine if a mother that has gone through an Orange County divorce can and should get a job.

·         The Age of the Children and the Number of the Children

The more the children a mother has to care for and the younger they are, the harder the chances of her being able to simultaneous work, depending on the custodial schedule.  Another consideration is what is the point of getting a low wage job just to pay most of the amount you earn back to the day care provider.

This issue is more relevant for moms that are in their 40’s or less and the father of the children has been the primary breadwinner in the family. Hence when they decided to go for an Orange County divorce, it was decided that the mother would care for the children staying at home, while the dad would pay their expenses and needs.

What moms need to understand is that in the California and Orange County family law courts must consider the best interest of the child, so the age and number of children are certainly part of that consideration.  However, pursuant to California Family Code 3900, both the parents of the child have a responsibility to support their children.  Therefore, although the court will likely not force a stay-at-home parent to work at the first stages of a divorce case, at some point that parent will likely be held to make reasonable efforts to find employment and not leave the entire burden of supporting the child on the other parent.  The subissues here are many and so it is advisable to seek legal advice concerning such issues.

 
No Legal Advice Intended: This website includes information about legal issues and legal developments. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. You should contact an attorney for advice on specific legal problems. Full disclaimer.