Welcome to The Maggio Law Firm’s PODCAST explaining the difference between temporary and long-term spousal support in California and spousal support concepts under California law that any person going through a divorce or legal separation needs to understand.
Welcome to The Maggio Law Firm’s PODCAST explaining how California Family Courts determine child support.
Child support is the amount one spouse has to pay the other after a divorce or custody case to be spent on the needs of the parties’ child. Child support cases can sometimes be a little complex in nature while most commonly they are contested in courts by both parties rigorously. There are often times though, when a spouse can fight the child support case just because they can, which ultimately causes them a financial setback. Here are instances when fighting a child support case might not be worth it.
The Case For The W-2 Employees That Have An Agreement On Visitation
In the case of those parents that are W-2 wage earners, which means that they are paid through pay check and taxes are automatically deducted from it and such parents have an agreement on the visitation time percentage between each, which can be 50/50 to 10/90, the child support issue is not a difficult issue at all and can be resolved quickly.
The amount of child support in such cases is calculated through computer software, such as Dissomaster and Xspouse, which are based on the statewide formula for child support under California Family Code section 4055. The program processes the data that’s entered in it and gives an amount of “guideline” child support that should be paid. Such cases are simple and should be mutually decided between the parties and their lawyers instead of going to court.
Self-Employed Income Earners
The case of a self-employed spouse is usually a more complex case, with each spouse having different accounts of the self employed spouse’s income. These cases often end up in Orange County family law courts. The need for litigation in this matter is felt, because child support and its amount depends on the income of the parent and disagreement on the income needs to be resolved in court before the child support amount can be calculated.
Disagreements Concerning The Parenting Schedule
The above two examples also require an agreement or court order on what percentage timeshare each parent has with the child. The amount of time spent with the child is a major component in calculating child support. The custodial schedule must be either agreed to between the parties or otherwise determined by the court before the amount of child support can be calculated. The percentage timeshare is determined most accurately by calculating the number of hours that each parent has per year or month and divided by the number of hours in the corresponding year or month.
Generally, when the child reaches the age of eighteen and has graduated from high school, child support payments end. This can be especially worrisome for ex-spouses that have been receiving child support and the end of such support can have a financial impact where the now-adult child is still living in the house. Let’s look at the effect of child support ending on the spousal support (alimony) payments.
Spousal Support Is Different Than Child Support
While both of these types of support are paid by one spouse to the other after a divorce, each of them serves very different purposes. Child support is the payment by one spouse to the other spouse to maintain the child’s health and welfare and necessities of life. Spousal support, on the other hand, is one spouse’s payment to the other spouse for that spouse to take care of himself or herself from that money.
Can The Spousal Support Be Increased By Courts After Termination of Child Support?
Orange County family laws allow that the party receiving child support spouse can return to the court and ask for an increase in the amount of spousal support if the child support has been terminated, because the termination of child support is generally considered a “substantial change of circumstances” that may justify an upward modification of spousal support. Hence, the spousal support order can be increased by the court on the request of the spouse, unless:
- The order for the marital settlement or the judgment order by the court makes it impossible to make modifications in the spousal support order
- The spouse during the court proceedings had waived of the right to receive spousal support or the court had deemed that she can’t claim it
- If the Judge has already provided an alternative for the phase after the child support ends
- The spousal support had already run out, expired or been terminated before the child support had ended.
Derivative Social Security benefits and its impact on child support is important irrespective of whether the parents are going through a divorce or not. This topic is one that is intriguing and yet not completely comprehended by married or unmarried parents.
This blog is going to focus on disabled and noncustodial parents and what sort of impact social security benefits will have on child support obligations. When someone is suffering from a disability, he or she receives social security disability benefits, and if that person is a parent, there is often another derivative benefit paid for any minor children that they have.
Did you know? Over 2 billion dollars each month are distributed as derivative minor benefit to disabled parents with minor children who number around 4 million.
The Case Of Disabled Parent Who Isn’t The Custodial Parents And Is Obliged To Pay Child Support
Social security benefits are considered as income for child support and thus the disabled parent may have an obligation to pay the child support to the other parent who has custody. The less time the disabled parent has with the child, the more the amount of child support. Such an amount can create a financial difficulty for the parent.
There is good news though, derivative social security benefits can sometimes be paid by the Social Security Administration to the custodial parent directly. This does have a proper process that the disabled parent has to follow. To get this solution, the disabled parent has to notify the custodial parent that he or she receives social security benefits. Then the custodial parent will apply for the derivative social security benefits directly through the Social Security department.
What happens through this is that the amount for Social Security benefits is then credited towards the child support to some extent relieving the disabled parent of that financial burden.
The Case Of A Disabled Parent When The Custodial Parent Refuses To Apply For Derivative Social Security Benefit
It seems unimaginable how someone can refuse to receive something that they are entitled to and yet there are several cases where this is commonly seen. Whether it is because of California divorce or some prevailing bitterness between the parents, sometimes parents with high emotions can see the derivative socials security benefit as an advantage to the non custodial parent and thus refuse to do anything that helps the other.
Orange County family law has anticipated such a problem and has given us a solution to it. Family Code 4504(a) states that the custodial parent must contact the Social Security administration within 30 days of receiving a notification from the non-custodial parent. The act is meant to reduce illogical fights and excuses of non-cooperation from the custodial parent.
Spousal support is often one thing most spouses that pay them hate. While most of these accusations are probably from a rant of an angry spouse fed up of paying spousal support to his or her spouse, there are ways to reduce the amount of spousal support you have to pay over time.
Step 1: Analyzing and Understanding the Order
You should plan and prepare for your modification request beforehand, as simply coming up with a modification request and hoping for the best will likely not accomplish what you are seeking to do. Your modification request should have good cause if you want it to be entertained and applied.
Not all spousal support orders are the same in California. The first step to reducing the alimony is analyzing your order carefully. When analyzing your order, you can ask question such as:
* Does the order identify a certain standard of living?
* Is the order expanding the reasons for modification?
All these factors have to be considered before you can think of filing a modification request.
Step 2: Look For A Change Of Circumstances Since The Last Spousal Support Order
This is one of the most important steps in reducing spousal support. The court will only make a downward modification of the spousal support order if it sees that there has been a change of circumstances since the last order.
A change of circumstances has many examples such as a reduction in your income, the supported spouse has obtained a job or a better job, or the supported spouse is cohabitating with someone else. All these situations are an example of the changes that can be shown to the court to justify the court to grant a downward modification in the previous spousal support order.
Step 3: Gathering the Necessary Evidence to Reduce Spousal Support
The first and the second steps are important but can’t make an impact unless they are coupled with the third one. You should use the first and second only after you have gathered evidence for each in the third step. This means that for a claim of downward modification due to a decrease in your income, you should be prepared with proof concerning any change of circumstances.
If you are a spouse in a divorce proceeding, how can you make sure you are paid a fair and equitable share of bonus income? How can the spouse paying support avoid overpaying? The main issue is that bonus income is discretionary and rarely known until it is paid. If a spouse’s income history for the last calendar year, plus bonus, is tallied and divided by 12, the result is the amount spousal support due. This is a flawed calculation, as bonuses vary and may also not be given every year. However, the spousal agreement remains in place, causing a financial inequity.
To try and avoid a Catch 22 situation, both parties and the family court judge must clearly and openly discuss financial circumstances and all possible variables. The judge, who holds the discretion to design a fair and equitable method to determine what cash is on hand to pay support, is then able to design a relatively balanced approach for payments.
There are cases where this is not done and the spouse paying support ends up in a difficult financial position attempting to juggle payments and their own personal obligations. It is difficult to accurately calculate phantom income and thus it is vitally important to retain an experienced divorce attorney who understands how the system needs to work with such unpredictable numbers and percentages. Both parties are entitled to equity in a divorce settlement.
The California Family Code sections dealing with income earmarked for child support awards are laid out in section 4058 and 4058(1). Section 4064 empowers the courts, based on both parties earnings, if applicable, to make adjustments to include fluctuating incomes, for those who work on commissions. Even with such limited guidelines in place, there is very little case law dealing with this issue. There are three “go to” cases with the most relevance, with the 1990 case of Marriage of Ostler & Smith being the one most often cited in relation to analyzing and presenting the issue of bonus income as part of child and spousal support orders in California.
Marriage of Ostler & Smith is most noted for the judge’s even-handed approach to base support on the husband’s dividends and salary (not phantom bonuses) and determine a percentage of support for each child and the wife. The conclusion was the husband would pay 35 percent of the gross bonus income. The decision was appealed and upheld. Each case is determined based on its merits and the case law may only provide guidelines even if Ostler & Smith is being argued in court.
Determining spousal and child support when one or both partners derives income from bonuses is a complex matter. Since there are only three reported cases in California dealing with this type of situation, hiring an experienced divorce attorney is the best way to ensure an equitable and fair resolution relating to support.
Do you recall when you and your partner called it quits? For some people, their date of separation sticks out in their mind. Mainly because the decision to part ways resulted from a full-blown fight or your partner was unfaithful, or one of the parties moved out. Whatever your reason was to end things, you will always remember your separation date. Although you may not want to keep that memory intact, when it comes to filing for divorce, the date of separation is quite important to remember.
What Role does the Date of Separation Play?
Knowing the date of separation is important in order to:
- Ensure a proper division of property for assets acquired between the date of marriage and the date of separation
- Determine the length of time that either party may be entitled to receive or pay spousal support to the other.
1. Fair Division of Property & Debts
Equalization of property and debts depends on the date you separated from your partner. It can have a significant impact on the sum of money allotted to the partner during divorce settlements. There have been cases where the partner got more money due to the date they separated. The reverse for this is also true. The reason for getting more or less money is also due to the value of shares increasing or decreasing during the time of separation.
2. Support Payments
The law states that the partner needs to start paying support to their ex on the date they separated. Therefore, knowing your separation date will help disputing couples settle many arguments. What happens when the disputing partners clash on what the exact date of separation is? Look at the next heading to find out.
Figuring Out the Exact Date of Separation
It is helpful for your partner and you need to sit down, with a divorce mediator or your lawyers, to come to an agreed-upon date of separation. The questions that may arise to solve this issue are:
- Do you remember when you decided to separate?
- When did you tell your family and friends that you both are not living together or sleeping in separate rooms?
- When was the last time you had marital relations with your partner?
More questions to determine the date may be asked. If there is a disagreement between the parties as to the date of separation, that issue would otherwise have to be resolved first in your divorce case in order to be able to determine property division and long-term spousal support issues.
California law makes a distinction between “short-term” and “long-term” marriages in determining the duration of spousal support payments and the jurisdiction of the court to award spousal support. For marriages less than 10 years in duration, California law and case law precedent maintains that the spouse obligated to pay spousal support is obligated to do so for one-half the length of the actual marriage.
However, for marriages 10 years or more, the court generally has continuing jurisdiction over the issue of spousal support and the longer the marriage, generally the prospect of continuing spousal support for many years to come.
Temporary spousal support, also known as “pendite lite” spousal support, is generally an award of support while the divorce is still pending in the court. It is calculated using the same formula and computer programs as for child support.
Permanent spousal support, which is determined by the court at time of trial or agreed to by the parties, does not involve a formula or computer program. Instead, it is a factual analysis of the factors of the marriage, including the marital standard of living and the following factors:
- The extent to which each party’s earning capacity is sufficient to maintain the standard of living established during the marriage;
- The contributions of the supported party to the paying party’s education, training, career position, or professional license;
- The ability of the supporting party to pay spousal support;
- The needs of each party based on the standard of living established during the marriage;
- The obligations and asset, including separate property, of each party;
- The duration of the marriage;
- The ability of the supported party to engage in gainful employment without interfering with the interests of dependent children;
- The age and health of the parties;
- Any history of domestic violence between the parties;
- The immediate and specific tax consequences to each party;
- The balance of the hardships to each party;
- The goal that the supported party become self-supporting within a reasonable period of time (usually one-half the length of the marriage);
- Any criminal conviction of an abusive spouse; and
- Any other factors the court deems just and equitable.
In situations where neither party needs spousal support at the moment, the Court can reserve jurisdiction to order spousal support in the future if there were any change of circumstances, such as serious illness, disability, or loss of employment.
Whether you are opting for full legal representation or self-representation for divorce, you must have a good understanding about the basics of divorce law in California. There are certain rules and restraining orders that you have to follow during the divorce procedure. Violating these rules might cause you to pay stiff legal penalties. Moreover, learning about California divorce law can help you choose the right legal alternative and divorce attorney.
Here are some quick and important facts about California divorce law that can help you understand the legal requirements and implications of divorce in California:
If you are filing for divorce in California, you must have lived in the state of California for the last six months and for the last 3 months in the county where you are filing the case. If both spouses have California residency but have been living in two different counties for the last 3 months, they can file for divorce in either of the two counties. For example, if you have lived in Orange County for the past 3 months, you can file your divorce case with the Orange County Family Law Court.
Summary dissolution is a joint filing process which requires less paperwork and in which both spouses mutually agree to an out-of-court settlement. You can only opt for summary dissolution if you and your spouse have mutually decided to divide your assets and debts uniformly between each other and the following conditions are also met:
- You must have been married for less than five (5) years (from date of marriage to date of separation).
- Combined joint debt or loan amount must not exceed $6,000 (excluding car loans).
- The total worth of community property should be less than $40,000 (excluding vehicles).
- The total worth of separate property should be less than $40,000 (excluding vehicles).
- Neither of the spouses can own land or a home.
- Couples applying for summary dissolution must not have any children (biological or adopted) from the relationship.
- Neither party shall ever receive spousal support from the other party.
California is a community property state. Regardless of the employment or financial state of spouses, California divorce law ensures uniform distribution of assets and valuables between spouses. Property owned by spouses is either community property or separate property. Community property is the assets and debts acquired during the marriage (in and out of the state). This property is divided equally between the spouses. Separate property, on the other hand, is the property acquired by either of the spouses before getting married or by inheritance or gift, and this property is not divided during the divorce.
Depending on the best interests of the children of the marriage, court may reward joint or sole custody. Following are some of the factors that can influence the decision of the court:
- Wishes of the child
- Financial stability of parents
- Frequent and continuing contact of the child with both parents
- Child’s safety
- Parents’ health records
- The history of drug use or alcohol abuse
- History of domestic violence
The court may also reward alimony (spousal support) to a spouse. The amount and period of alimony can depend on the length of marriage, the marital standard of living of the couple during the marriage, and other factors under California Family Code section 4320. It is advisable to speak with a divorce attorney to fully understand how the family court determines alimony.
Just keep the above-mentioned facts about California divorce law in mind when filing for divorce. This can help you deal with all the legal proceedings in accordance with California state law.