Maintain Records Of Your Alimony Payments Post-Divorce

Posted by: Gerald A. Maggio, Esq.

Top divorce attorneys in Orange County; The Maggio Law FirmSpousal support or alimony is payment by a spouse to another spouse after a divorce. Alimony is not always given by the courts. It is mostly given where the marriage was a long lasting one and income of one spouse is more than the other. It is also given where one spouse has been out of the workforce to manage the household or raise children.

Alimony is tax- deductible for the person who pays. Conversely it is a taxable income for the recipient spouse. It follows that it is very advisable to keep all records when you pay or receive the alimony. These can turn out to be extremely important. It is seen that spouses dispute post-divorce over the amount which is actually received or paid. If there is insufficient documentation, the payer may lose alimony tax deduction or can be pushed to pay back -support in-case the spouse wants to make a court claim.

Payer of the alimony

It follows that each party must keep a list which shows each payment. This must include the date, check number and the address to which that check was actually sent. Records must also be kept of all the check originals used for making payments. These must be kept in a secure place, like safe deposit boxes. Ensure that a note must be made on each check for every month when the support is paid. In case the support is being paid in cash, the payment receipts must be kept, and signed by recipient. These records must be kept for a minimum period of three years from date you have filed tax return which was deducted from the payments, but it is advisable to keep them as long as possible.

Recipient of the alimony

The spouse who receives the support must prepare a list which displays every payment received. Information like the date of received payment and the amount received should be carefully kept. Identifying information like the money order number or check number and the account number on which the check gets written must be preserved. Other important documents on the list include the bank name on which the money order is issued or check drawn must be documented. Photocopies of the money order or check and any copy of the signed receipt given for cash payments must also be filed away for future use.

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.  

Changing A Child Support Order

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce lawyers; The Maggio Law FirmMany people nowadays have trouble meeting child support payment requirements due to change in their living or professional circumstances. If you receive or pay child support, they could be a time when you feel that the support order must be changed. You can make this happen.

Parents and the modification of support

The first step you must make is to see whether you and your spouse can reach an agreement to modify relevant child support terms. If this is possible, you can simply request a judge to approve such a change. This will be done without any hassle. There will be a problem only if the amount is less than what the State of California has stated in such a case. If this is the case, you must give a detailed explanation of why you are doing this and how can the new amount will provide for the support of the child.

Requesting the court to modify support

If you and your ex-spouse cannot agree on the change, you will require to ask for the appropriate court hearing. Both you and your ex could argue for the appropriate amount. The general rule is that for getting a modification you must show that something about your own circumstances have changed from the time the court gave the existing and last order. The court, depending in nature of changed circumstances, may grant a modification. The list of changes which will provide a temporary modification include the medical emergency of the child, the temporary inability of the payer to pay or temporary medical or financial hardship on the recipient parent’s part.

You may get a modification if either one of you change to a new job or lose the existing one and get a markedly different income. Another condition will be if any of you remarries and the income of the new spouse significantly jacks up the income of the household.  Modification will also be given if there is an increase in the cost of living or either one of you suffers a disability. It can also be done if the needs of he child change significantly or there is a change in the child support laws. The permanent modification of the child support order will be kept in place until the time the support is not needed or if the order gets modified due to changed circumstances.

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 To Know About Retroactive Child Support

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce attorneys; The Maggio Law FirmThe meaning of retroactive child support is that the concerned child support order is not simply a prospective one but is a retroactive one. In other words, the retroactive child support is a kind of child support which begins on a past date.

Rules and petition

Retroactive child support carries with it a number of rules. The first or initial child support order can be or not a temporary one. This is order prior to a judgment. This temporary order could be made retroactive to that particular date the petition or any other document which is filed at first. There is no compulsion that it has to be a temporary one, but the court could order that it begins at that particular past date.

This kind of petition generally begins a paternity or divorce action. It means that the initial or begin date of the child support order in California could go back to that date which was filed. This will be applicable even if the court hearing starts after that. However, there could be exceptions to this rule. One example of this can be divorce petition filed on the February 1 date and then served. A child support request is subsequently filed on the first day of March. The hearing was scheduled on April 15. The court on April 15 makes the child support order and could make the same retroactive to the first day of February or March. 

Exceptions

A common exception is that when that first petition -or any other document which began the process- was not served on other parent within a space of 90 days of the filing. If such a situation arises, the retroactive beginning date is date of serve. However, the exception may have exceptions as well and it will not be applicable as per the Family Code 4009.

California Family Code 4009 states that the original order given for child support could be retroactive to date of the Petition filing or complaint filing or any other initial pleading. In case the parent who was ordered to pay the support was not being served with initial pleading, petition or complaint within the space of 90 days after filing and it is found by the court that the concerned parent did not have the intention to evade service, the concerned child support order will be effective not earlier than the service date. In some cases, the California Family Court may reserve retroactivity at the time of making the child support order.

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.  

Tips On Dealing With Back Child Support Arrears

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce lawyers; The Maggio Law FirmThere are several real life instances wherein a parent falls behind on his monthly child support payments due to various factors, resulting in the accumulation of a hefty back child support debt. Due to the enormous interest on the unpaid amount, the debt culminates into a huge sum which the parent finds extremely difficult to clear.

In most cases, the court of law takes stringent action against such defaulters.  However, if you have genuine reasons for not being able to pay the monthly support for your child, you can follow a few guidelines of dealing with the back child support debt.

  • In case, you find out that the balance calculated for the back child support is erroneous, you can file for its re-evaluation with the court of law. For such a petition you will be require to furnish the receipts or proofs of payments made in lieu of the child support.
  • You can get up to 90% of you back child support arrears reduced through the Compromise of Arrears Program designed by the state of California to address the grievances of eligible non custodial parents. The reduction in the interest and arrears will be calculated on the basis of the individual parent’s assets and regular income. Depending upon the individual case, the parent will be required to pay off the debt in either a lump sum or in fixed installments over a period of time.
  • Although, bankruptcy cannot be cited as a reason for reduction of the back child support of an individual in the California courts, there are ways of getting the interest portion waived off. If the parent still has a job that will aid in paying off the debt within the next five years, the court of law can order a complete waiver of the interest applicable on the dues.
  • A parent has the right to file for a petition for ‘equitable forgiveness’ under which he will be exempted from making the back child support payments, in the event that the child was living with the former during the period of debt accumulation.
  • You can also negotiate a settlement with your spouse, which waives off your back child support payment in exchange for a lesser bulk payment to the latter.

If you face any support dues related problems, you should immediately consult your attorney and try to deal with the issue before it becomes too complex to resolve.

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.  

Requesting a Modification in Spousal Support

Posted by: Gerald A. Maggio, Esq.

Divorce attorneys in Orange County; The Maggio Law FirmThere are several such divorce cases, wherein either spouse might want to request a modification in the amount of alimony he or she pays to the other partner. The state laws of California allow an individual to get his spousal support adjusted in due course of time only if the original court order does not carry specific clauses or statements that render the alimony ‘non modifiable’. We are listing a few common situations wherein an individual can request the court to modify his or her alimony.

A mutual agreement with your spouse 

In certain cases, both of the divorce partners might come to a common agreement regarding a modification in the terms of their spousal support. The settlement can be made without the approval of a court of law. However, under some situations the other partner might later refuse to accept the new terms and conditions of the modified agreement. It is therefore advisable to get your new agreement signed by a judge, in order to make it enforceable by the court of law and legally binding upon both the partners in agreement.

The cost of living adjustment clause

By incorporating a COLA or cost of living adjustment clause in your original divorce decree, you can ensure that the alimony payments you receive will be increasing at a rate equivalent to the increasing annual rate of cost of living. The COLA clause will not only ensure that you receive suitable payments as per the changing economy around you, but also minimize any conflicts or disputes arising out of a need for modifications.

The escalator clause

An inclusion of the escalator clause in the original divorce decree ensures that you are automatically entitled to receiving a share of an increase in your partner’s earnings. For example, if your ex-spouse serves in the armed forces and is entitled to an annual raise in his cost of living, you will by default receive a specific portion of that raise.

Temporary situational modifications

If in case, the recipient of the alimony falls ill or loses a job, the court of law has the discretion to increase the support payments for the time period of the unforeseen contingency. On the other hand, if the payer loses a job or falls ill, he can also request the court to reduce the support payments for a specific period of time. These modifications however are temporary, and revert back to the original terms once the individual returns to his normal life.

If in case, you think that the support that you pay or receive is too huge or too little respectively, you can consult your attorney and go ahead with the proceedings as per your state laws.

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.  

Child Support and Uncontested Divorce in California

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce attorneys; The Maggio Law FirmDetermining child support in uncontested divorces in California can be relatively straightforward.  The rules for deciding and calculating child support are the same for contested as well as uncontested divorces. The court simply uses certain predetermined calculations based on the income of the parents to determine the amount of support to be paid.

It is generally believed that the parents in an uncontested divorce will agree to issues related to their child. So it is advised that the parents should begin the process of discussing child support by exchanging details of all their income and expenditures. Honesty should be the best policy here. Each parent should declare at least one year’s income so that it becomes easier for the court to get a better idea about their averages.

Guidelines for calculating child support in uncontested divorce

The court follows certain guidelines when calculating child support. Following these guidelines opens up the possibility of modifying the amount being paid in support. The guidelines that are considered are as follows –

  • The number of children the separating couple have
  • The percentage of custodial time the parents have decide on
  • The tax filing status of each parent – whether it says ‘head of family’ or ‘ married filing separate’ and so on
  • The taxable and non-taxable income of each parent
  • The exemptions claimed by each parent
  • Deductions such as property tax and mortgage interest
  • Healthcare expenditures
  • The health insurance premium being paid by the parent paying child support
  • Any uninsured expenditures

If child support was calculated following all of the above guidelines, then the child support is modifiable. Otherwise it is not.

The child support payments continue till the child receiving the support attains 18 years of age. But the child has to complete high school. If the child has attained 18 years of age but is still a full time student at high school level, child support has to be paid till your child completes high school or turns 19 years old.

Child support may seem easy to figure out in an uncontested divorce but it can get complicated when it comes to declaring your expenditures and income.

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.  

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.

 
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