Considerations In Determining Spousal Support

Posted by: Gerald A. Maggio, Esq.

Top divorce attorneys in Orange County; The Maggio Law FirmSpousal support or alimony is one of the most burning issues of a divorce or a legal separation. Many a times, the spouse who is required to make a hefty support payment might feel that it is quite unfair for him to carry on with the financial obligation towards their ex spouse even when the actual relationship ends. However, in order to make the alimony settlement with due fairness, there are several considerations that a judge must keep in mind while deciding upon the final verdict.

Duration of the marriage or domestic partnership

In cases involving a long term or permanent spousal support or alimony order, the court of law is obligated to align it with the length of the wedlock or domestic partnership. The basic aim of alimony is to ensure that the spouse receiving the support is able to meet the financial requirements of their sustenance and lifestyle within a stipulated time. The state law of California describes this stipulated time typically as half of the actual duration of the marriage or partnership. However, the same law also provides a discretionary power to the judge to make a deviation from the rule as per the requirement of the individual case.

A major deviation example will be in the case of long term marriages or partnerships that have lasted for a period of 10 years or more. In such cases, the judge has the discretion to entirely do away with the stipulation of an end date for the alimony, which will then carry on for a lifetime.

Domestic violence or abuse

While making a final alimony settlement, the judge is obligated to look for documented accounts or evidences of any domestic violence in the past, between the two parties involved. In case the abusive partner is supposed to make the alimony payments, the judge will evaluate the level of mental and emotional distress that the other partner may have suffered at the hands of their violent spouse.

Apart from this, in the event that a criminally convicted abusive spouse demands an alimony from his or her partner, the court may go for a rebuttable presumption against granting him the right of receiving any spousal or partner support.

There are several other considerations such as tax impact, standard of living, age and health, property and debts, unemployment and the like, that the judge has to account for before announcing a final verdict for alimony.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

How To Calculate Child Support in California

Posted by: Gerald A. Maggio, Esq.

child support attorney Orange County; The Maggio Law FirmThe calculation of the amount of child support in California is determined by a number of factors. Any child support payment includes the basic child support and health insurance coverage. There are other extra mandatory child support payments as well.

Factors influencing support calculations

There are mainly 4 factors that influence calculating the amount that is to be paid as support.

  • The number of children who are permitted to receive child support.
  • The parenting time or visitation right or custodial rights of each parent with the child.
  • The net disposable income of each parent. But computer software programs such as X-spouse and Dissomaster consider your gross income to determine how much can be set aside for child support.
  • In case there is more than 1 child, the youngest child receives the full amount of support an only child would have received. The other child or children is given an amount based on downward adjustment of the support amount.

Mandatory health insurance coverage

Every child receives a mandatory medical support from either or both the parents as long as the health insurance is free or is available at a reasonable premium. The health insurance should include medical, vision and dental coverage. Most commonly, group health insurance policies received at employment are the most reasonable of health insurances to be used in child support.

Mandatory child support extras or add-ons

  • Health care costs of the child that are uninsured are generally divided equally between the parents. California child support laws say not paying uninsured health care costs is akin to not paying child support. But payment of uninsured health care costs can be challenged in court which opens up scope for heavy litigation of such instances. All reasonable and necessary uninsured healthcare costs (those that are not related to cosmetic procedures) have to be shared by both parents.
  • A parent may be asked to pay an additional amount in support if the child needs special schooling or goes to a private school. But such costs are not needed if the child suddenly makes a transfer from a public to a private school. The parent’s ability to pay such costs will definitely be taken into consideration.
  • Travel expenses may have to be paid if the child has to travel a great distance to be with the noncustodial parent with visitation rights or the other way round.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

The Child Support Process in California

Posted by: Gerald A. Maggio, Esq.

Divorce attorneys in Orange County; The Maggio Law Firm, Inc.The process of seeking child support in California has different stages to it. It is advisable to enlist the help of experienced lawyers with knowledge of the child support laws in California. The process will require you to fill out a number of detailed information. It is best your lawyer helps you do this.

Child support cases can become quite complex. Self representation should not be considered. You may be a parent seeking or disputing child support, but these are the different stages in the child support process that you need to be aware of.

Filing a request for child support

The filing of a request for child support can be done in 2 ways. Most commonly, the parent seeking child support will have to file a Request for Order.  Or your attorney may want to type out the formal request declaration detailing in legal terms the basis of such a request. Sometimes a child support case may be filed because a local child support agency has approached the California Department of Child Support Services.

Declaring your income and expenditures

A request for child support should have a declaration of the income and expenditures of the parents of the involved child. Failure to provide these critical details will affect the process and outcome of the child support case. The parent seeking support may be denied the requested amount of child support.  The parent opposing the child support request, based on an assumption made by the court about his or her income, may have to pay more.

Serving the request order to the other parent

The other parent is served with the child support request order once the request has been filed. The method of serving the order depends on whether the other parent has already been served with a paternity or divorce petition. It is also greatly influenced by the fact that whether the other parent is a resident of California or not.

Deadline for responding to the order

The parent receiving the request order will have to reply within 9 working days of the court and before the date of the hearing of the child support case.

The hearing 

The court will review the documents submitted by each parent, and listen to testimonies made under oath to make a decision on the child support case. The court will listen to all disputes and issues that are well supported with factual evidence.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Understanding The Basics of California Alimony Laws

Posted by: Gerald A. Maggio, Esq.

Divorce attorneys in Orange County; The Maggio Law FirmAlimony aka Spousal Support is perhaps the trickiest element of a divorce. It goes without saying that the one who has to pay does not want to pay, and the one who has to be paid wants to be paid higher. Despite the guidance of the existing legislation and legal mandates in California, bringing both the parties involved to a common ground is more than just a challenge. What ensues is a bitter battle between the two parties, which more often than not, eventually finds itself in Court.

Temporary Alimony vs Post-Judgment Alimony

Divorce case settlements can take any amount of time. During this period, the Californian court allows for the payment of Temporary Alimony. This support is paid until the case is finalized in court. This alimony amount is settled based on the payor’s ability to pay and the dependent spouse’s need.  The amount can also be modified before the final judgment, with concrete and well-established reasons.

Temporary Alimony – a legal dilemma

It is often the case that the payor of alimony insists that the amount demanded is unreasonable and that he or she does not have the financial means to pay it. The payee on the other hand, insists that he or she will find it difficult to make ends meet with what is offered. This is a serious problem when it comes to the payor-spouses who are in debt. If an individual spends more than he earns, where can he find the means to pay the payee?

Usually, the court solves this dilemma by investigating into the expenses of both the parties. The court checks the expenditures of the parties to see how much of their income is ‘wasted’ on things they do not need. The payee is then directed to ask for an amount that is sufficient only for his or needs, and the payor is asked to adjust his expenditures so that this amount can be paid.

Determinants of a Post-Judgment Alimony

What follows the Temporary support cannot really be called a permanent support as not all judgments allow for alimony payment forever. The Courts in California settles the issue of post-judgment Alimony based on a ‘marital standard of living analysis’ under the guidance of the California Family Code section 4320. Before delving deeper into the directives of the Family Code 4320, the Court makes an analysis of:

  1. The level of frugality or lavishness in the family’s lifestyle.
  2. How functional the marriage has been.
  3. How long the marriage has lasted.
  4. The work-life balance maintained by either spouses

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.

Frequently-Asked Questions About Spousal Support

Posted by: Gerald A. Maggio, Esq.

orange county divorce lawyers; The Maggio Law FirmYou are thinking of filing for a divorce and there are a lot of things worrying you. Alimony or spousal support is surely going to be one of them. Alimony is quite a sensitive issue and there are always questions regarding it.

This article aims to answer some of the most frequently asked questions regarding spousal support in California.

What is spousal support?

Spousal support is more commonly known as alimony. In cases of divorce or separation, spousal support is paid when one spouse earns substantially less than the other spouse. The amount is decided by the court.

What are the different kinds of alimony?

Alimony is broadly categorized into temporary alimony and permanent alimony.

What is temporary spousal support?

It is the payment made by the higher earning spouse or partner to the spouse or partner with a lower or no income. It is called ‘temporary’ because it provides financial support for the time period of the divorce proceeding. Once the divorce or separation is finalized, the temporary support changes to a permanent one.

What is permanent spousal support?

It is also known as ‘long term support’. Permanent spousal support, as the name suggests, is a regular payment of alimony from the higher earning spouse or partner to the spouse or partner with a lower or no income. The alimony continues to be paid after the divorce or separation has been finalized.

Permanent alimony is a written agreement determined by the court and agreed upon by the parties in a divorce or separation.

How long does permanent spousal support last?

The term ‘permanent’ is a bit misguiding here. This kind of a support is not for the rest of your life. It depends on the length of the marriage.

For short term marriages (that have lasted less than 10 years), the alimony lasts for about half the length of the marriage.

For marriages over 10 years, the length of the alimony payment is determined on the basis of a number of factors. ‘Half the length of the marriage’ rule does not apply here.

For very short marriages, permanent alimony may not be required at all. Temporary support payments can resolve the matter.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Understanding What Is Temporary Spousal Support

Posted by: Gerald A. Maggio, Esq.

spousal support attorneys in Orange County; The Maggio Law FirmTemporary spousal support is generally awarded when one spouse earns substantially less than the other spouse. The Superior Court of Orange County, California has determined that temporary spousal support can be obtained pursuant to a filing of a Request for Order to obtain temporary court orders before the final trial date.

In California, in order to claim spousal support, parties have to be married or be registered as domestic partners.

Calculating spousal support

The greater the difference in income between the parties, the higher is the support amount. An informally adopted guideline determines the support. 40% of the income of the paying spouse is considered. 50% of the income of the receiving spouse is calculated. The difference between these two amounts will give you the net amount of spousal support.

Courts generally use computer programs such as Dissomaster or Xspouse to generate these amounts. The respective gross incomes of the parties are fed into the system to get the results.

Health insurance, union dues, obligatory payments and contributions, tax write-offs in mortgage payments, and so on are some of the details that are taken into consideration while determining net income. However, most personal expenses such as credit card bills, rent, and other costs of living are not considered.  Filling out the Income and Expense Declaration can be a bit tricky.

Other things to know

The length of the marriage (except in cases of really short ones) does not determine the amount of support.  If you are already receiving child support, temporary spousal support would be determined on the amount of child support received.

You do not need to be employed in order to seek spousal support. You may have to find employment in the near future but the spousal support will cover your basic needs for the moment.

As per the Internal Revenue Code, all spousal support payments are tax-deductible for the spouse who is paying it. It is, however, taxable for the spouse who is receiving the support but only as “ordinary income”.

Temporary spousal support is not as easy as it sounds and requires help. If you are based in Orange County or anywhere in California and would like to know more about the various issues related to temporary spousal support or is seeking legal advice, you should consult with a qualified divorce attorney.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Who Pays Alimony in Divorce?

Posted by: Gerald A. Maggio, Esq.

Top divorce attorneys in Orange County; The Maggio Law FirmEvery time you hear the word ‘alimony,’ you are probably thinking of a man writing out all of his monthly salaries off to his vengeful ex-wife. It is normally taken to be that way in popular culture. Movies and TV shows often use this as a device for easy comedy. The loser husband going broke every month while the woman in question has an easy life spending all that money. It works as a plot device, but in real life, this is not the case. In fact, in a lot of ways, it can be quite misleading. If you think that alimony is something the man pays his ex-wife by default, you may be wrong.

The standard of living (of the marriage) 

One of the key things that are used to measure what a marriage is worth and how alimony is calculated is the standard of living, in this case, of the marriage. It is also the key to finding out if there will be any alimony at all. Standard of living is an economics concept, and it is used to find out whether the couple would be able to live by themselves, in the same or similar economic standing as they were able to when they got married, after divorce. The law is simple so far. If one person makes all the income and the other is a stay-at-home spouse, then the person who is employed will have to share a part of their income with the non-earning member. If there is no sharing, the earning member will end up with a lot more disposable income than that of the non-earning member whose standard of living will drop drastically. The concept of alimony is designed to protect the standing of the non-earning member.

The courts decide what the alimony amount will be and for how long it will have to be paid. In many cases, it will extend until a specified period, within which the recipient can find their own employment and sustenance.

It is important to remember that apart from extraordinary cases where one member has a sudden spike in income, it is almost impossible to return to the same standard of living levels that the couple enjoyed as a family. That is simply because it is costlier to run two households than it is to run one. The concept of alimony is simply there to make this downgrade as soft as possible.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.   

How is Alimony Calculated?

Posted by: Gerald A. Maggio, Esq.

Top divorce attorneys in Orange County; The Maggio Law FirmWhen a couple files for a divorce and the proceedings have begun, the court may be inclined to award one of the former spouses alimony based on a decision it makes or an agreement that has been reached by the couple.

Alimony or spousal support can be described as a support system that limits the unfair economic effects that a divorce could have on the spouse who is unemployed or earns lesser among the two by paying a continuing income.

One justification for the alimony is that one of the spouses may have decided to step back from a career to support the family and will need time to hone their skills to be able to find a job to support themselves. Another reason behind alimony is to help the recipient continue living with the same standards as they had during the marriage.

How is alimony determined?

Alimony is very different from child support, which is mandated with specific monetary guidelines. Courts have much broader brackets to consider while determining whether alimony should be awarded and how much and for how long should the process run. Courts consider certain factors while deciding on alimony awards. They are:

  • The age, physical and emotional health, and financial status of the former spouses
  • The duration of time the recipient spouse would require to becoming self-sufficient
  • The length of the marriage
  • The spouses’ standard of living during the course of the marriage
  • The ability of the payer spouse to support both the recipient and themselves

With alimony awards, it could be hard to estimate if the payer spouse will follow orders. Unlike child support enforcement which is governed by a several legal mechanisms, alimony is not covered by such umbrellas.

But if the spouse doesn’t pay, the recipient could always go to court and file a contempt proceeding forcing the spouse to make payments. Since a court can award alimony, there are court mechanisms to enforce the alimony award, in case the alimony is withheld.

How long should a spouse be paid alimony?

Under California law, for a marriage under 10 years in duration, the spousal support will last for approximately one-half the duration of the marriage.  For a marriage over 10 years in duration, the court will have continuing jurisdiction over the issue of spousal support with no specific termination date, but can be revisited as circumstances change over time.  If the decree does not mention when the alimony is to end, the payments should continue until the court decides. In most cases, the payments end when the recipient remarries.

Different states have slightly different rules regarding spousal support. If you want to learn more about alimony in Orange County, consult a divorce attorney.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.

What Are The Conditions Related To Spousal Support Post-Divorce?

Posted by: Gerald A. Maggio, Esq.

Divorce attorneys in Orange County; The Maggio Law FirmAlimony (spousal support) is the legal obligation of one person to financially support his or her spouse before or after marital separation or after filing for a divorce. The state family laws will affect the conditions of payment of alimony or spousal support in the United States. Initially, it was always the man who would have to financially support the woman post the divorce but nowadays the U.S. state family courts assess the financial position of both parties before deciding who will pay whom alimony.

Factors affecting alimony in the U.S. 

In the United States, each state varies from the other when it comes to alimony payments. Some states rely solely on the judge’s decision on which spouse will have to pay alimony, the amount payable and how often. Some states award alimony only if the couple was married for 10 years or more and limits the payment of alimony to just 3 years unless there are extenuating circumstances.

In Kansas, alimony will not be payable after 121 months. In Utah, the length of time for paying alimony will not exceed the length of the marriage. In Delaware, alimony will not be awarded to either partner if the marriage term was less than 10 years. In New York, whichever partner has the higher number of educational degrees will be expected to pay alimony to the other as they are expected to earn more income because of their higher education as degrees are considered to be a form of marital property. Sometimes the judges in family courts utilize the expert advice of financial experts and labor economists to help decide who should pay alimony to whom as well as the amount and duration of alimony payment.

Types of Alimony 

In general, there are four types of alimony that apply to all states in the US. They are –

  1. Temporary alimony – also known as ‘pendent lite support’ as it refers to the alimony payable by one partner to the other while the divorce suit is still pending, prior to getting the actual divorce.
  1. Permanent alimony – money payable by the partner earning more income to the financially weaker partner till the death of either partner or remarriage of the payee.
  1. Rehabilitative alimony – alimony payable to the lesser earning spouse till he or she can find a well-paying job and become financially stable.
  1. Reimbursement alimony – alimony paid to one spouse for expenses incurred by him or her during the marriage

The main factors or conditions that affect payment of alimony in the U.S. 

  • Length of the marriage
  • Length of separation while still married but before getting divorced
  • Age and health of both parties at the time of divorce
  • Current income and future income earning capacities of both partners
  • Reason for divorce or breakdown of the marriage (fault vs. no fault divorce states)

Getting divorced in California can be complicated.  To learn more about California divorce and the laws specific to California alimony, download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

How Can Cheating On Your Spouse Affect Alimony?

Posted by: Gerald A. Maggio, Esq.

Orange County divorce attorney; The Maggio Law FirmPeople fall in love, get married, and start families every day. But, unfortunately, marriages fall apart more often than people would like. And one of the biggest reasons behind this is infidelity.

When adultery pushes a marriage to divorce, it becomes a painful experience for everyone involved. Some divorce cases have been known to turn rather nasty and go on for years before settlement.

If you are someone who is on the verge of filing for a divorce because your spouse was unfaithful, there are a few things you need to keep in mind before the papers are drawn. Adultery can affect your divorce and alimony and you need to be aware of how the possible impacts it could have.

How can adultery affect your divorce?

In most states in the United States, adultery can be used as substantial grounds for divorce. But if you live in Orange County, you should know that California is a no-fault divorce state. Here, you can only get a divorce for one of two reasons:

  • Irreconcilable differences between spouses
  • If your spouse has been inflicted with incurable insanity

Many states have deemed adultery as an illegal offense, but California has not, so there are no official state definitions of the act. The courts of California do not consider adultery while deciding the divorce.

How does adultery affect alimony?

During a divorce trial, judges do have some liberty in deciding if alimony has to be awarded, the amount of the alimony as well as the duration. To be entitled to alimony, the receiving spouse should produce evidence of requiring monetary support, and the paying spouse should be capable of paying the amount for that duration of time. Before it has been decided if alimony is necessary, the judge must consider all factors and come to a fair and reasonable decision.

In most cases, judges are not allowed to take marital misconduct into consideration when they are making a decision regarding alimony. The sole purpose of alimony is to ensure that neither of the spouses faces financial troubles once the marriage ends.

Alimony was never intended as a punishment to spouses for bad conduct during the marriage. Since California does not consider adultery as grounds for a divorce, the judges in Orange County and other cities will not base alimony on adultery.

If you are a resident of Orange County and are considering filing for a divorce after your spouse cheated on you, it is recommended that you speak with a family law attorney before your divorce proceedings are set in motion.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.

 

 
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