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.

Divorced Dad Seeks to Eliminate Spousal Support in California

Posted by: Gerald A. Maggio, Esq.

Divorce attorneys in Orange County; The Maggio Law FirmA divorced dad in Orange County, California is calling for an overhaul of alimony laws, saying they are archaic and used unfairly by divorcing spouses to extract more money from their partners.

Businessman Steve Clark has claimed that current alimony laws were drafted when most women did not work. Women now comprise nearly half of the work force in the United States.

Alimony, also known as spousal support, is the payment one spouse makes to another after a divorce, based on a court decision or an agreement between the couple.

Clark decided to take action after his divorce culminated in long-term alimony of $1000 a month to his ex-wife, even though she works and has the ability to be financially independent, based on current California law factors.

In many divorce cases, the spouse with the higher income may end up paying alimony. However, a number of factors are considered when determining payments, such as the duration of the marriage, standard of living, financial obligations and more.

Clark is petitioning to end alimony via his website, calalimonyreform.org. He must collect at least 365,880 signatures from state voters by November 2nd for the bid to qualify for the 2016 state ballot.

If the controversial initiative is passed, alimony would no longer be awarded during divorces, legal separations and annulments. Existing alimony payments that were to end within 10 years would also stop, unless a court extension is granted.

Understanding California Spousal Support Rules

Posted by: Gerald A. Maggio, Esq.

spousal support attorneys in Orange County; The Maggio Law FirmOrange County divorce cases can sometimes be complex affairs. A divorce cases usually involves a host of issues that need to be addressed by the two parties before a judge can decide on the final judgment. One of the most important factors in a divorce case is spousal support. Spousal support has multiple rules that can make it difficult to understand.

In this blog, we will take a look at the rules used in calculating temporary spousal support while the Orange County divorce case is going on (versus long-term spousal support considerations at the end of the divorce case at trial which requires a consideration of the marital standard of living and the factors under California Family Code section 4320). In California, the courts determine temporary spousal support using a computer formula that is known as Xspouse or Dissomaster. In cases that involve children, spousal support is calculated after the child support requirements have been evaluated since the children come above everything else in a divorce case.

Yet despite the computer program, there are exceptions to the way spousal support is calculated.  Here are a few rules that govern exceptions in calculating spousal support.

·        When Tax consequences are different to what has been assumed by the Spousal support formula

The computer program that calculates the spousal support has an assumption of a tax consequence existing for all gross incomes. It will take into account what you would pay as tax. If however that is not the case, you need to notify the court as such as prove it using facts and evidences that prove your net disposable income has been calculated incorrectly.

·        When you have support obligations from other relationships

The computer formula is not designed for special circumstances. If you have been in a prior Orange County divorce and still have support payments to make, you should tell that to the judge. The judge will take that into account when deciding on the spousal support amount in this case.

·        The California Spousal Support Number doesn’t consider what you need

One of the leading criticisms of the system has been its inability to take into account the need of the spouse being supported. The computer will simply develop an amount using the net disposable income of the spouse. If the spousal support amount is disproportionate or inadequate for the needs of the spouse, they can put the matter in front of the judge for modification.

To prove you have need, the evidence needs to be factual, compelling and of an actual need and not a hidden want. Despite that, it will be on the court’s discretion to award an additional mount on top of has been decided or not.

·        Extremely High expenses not considered by the Spousal Support Formula

If you have out of the ordinary expenses that you want the court to take into account before making the spousal support order. You need to lay it down in front of the judge. The judge will only listen to your claim if you can give tangible, compelling evidence. But the decision is solely on their discretion.

Imputing Income to a Parent in Child Custody Cases

Posted by: Gerald A. Maggio, Esq.

Divorce attorneys in Orange County; The Maggio Law Firm, Inc.The matter of imputing income to a parent in a divorce case is one best described by the word discretion. The California family law courts have a wide discretion to decide cases of income imputing. The only thing that needs to be taken care of is the decision should bear resemblance to the actual facts and evidence of the case suggests.

Imputation of income in an Orange County divorce case occurs when one of the parents alleges that the other spouse can work but refuses to earn an income. The concept of imputation has been causing uncertainty for Orange County divorce lawyers for some time now. There are multiple decisions on similar facts that conflict with one another.

Courts Can Consider Earning Capacity Instead of Income

Simply put there have been cases where courts have assigned an imaginary income to the parent when deciding child support. This income will be based on their abilities, capacity and opportunity to earn income. This rule though can only be applied by the judges until and unless it is not conflicting with the best interest of the child.

There is no need for the court to hold the lack of work or refusal to work against the parent in bad faith.  Family law courts will simply look at the ability and opportunity of the spouse to earn income and then impute income if they see fit.

Imputed Income is Not Restricted to Child Support Cases

Imputing an income is not a primarily child custody concept. Orange County family law courts can even look at the assets that are producing income and create a reasonable rate of return of it. If for example a particular investment is made such as in stock portfolio etc. that have a fixed rate of return the court will not dispute or second guess that value, speculating that it could have been or should have been higher.

Can The Court Impute An Income and Add It to What the Parent Already Earns?

The answer to the question is not as far as formal proceedings are concerned. In theory, imputation of an income is done in a divorce case instead of the actual income and not in addition to. When you add an imputed amount on top of what the parent actually earns, it would disturb the child support guidelines and result in one of the spouse getting a significant windfall.  On the other hand, income such as return on investments can be added to the existing amount of income, because it is not related to the parent making an effort to be employed.