After the initial divorce paperwork has been filed with the court, either spouse may file for an “Order to Show Cause” hearing with the court requesting a hearing to decide temporary orders for child custody, visitation, child support, spousal support and other orders while the divorce is pending. Other orders can involve temporary use of marital property, restraining orders and orders that one party pay the other party’s attorney feed and costs.
California law makes a very important distinction between “short-term” (also known as “lite” spousal support) and “long-term” (i.e. beyond the divorce itself) spousal support that is extremely important to understand. This distinction affects how the court determines 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 precedent maintain 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.
To determine the amount of long-term spousal support, the Court will consider such factors as the standard of living during the marriage, the length of the marriage, the needs of the parties, the age, health, earning capacity and job histories of both parties.
These factors are specifically stated in California Family Code section 4320, which by law the court must consider all of the factors state in 4320.
California Family Code section 4320 states as follows concerning long-term “permanent” spousal support:
In ordering spousal support under this part, the court shall consider all of the following circumstances:
a. The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
- The marketable skills of the supported party; the job market for those skills; and the possible need for retraining or education to develop or acquire other, more marketable skills or employment.
- The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
b. The extent to which the supported party to devote time to domestic duties.
c. The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets and standard of living.
d. The need of each party based on the standard of living established during the marriage.
e. The obligations and assets, including the separate property, of each party.
f. The duration of the marriage.
g. The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
h. The age and health of the party.
i. Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.
j. The immediate and specific tax consequences to each party.
k. The balance of the hardships to each party.
l. The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of a long duration as described in Section 4336, a “reasonable period of time” for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.
m. The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4325.
n. Any other factors the court determines are just and equitable.
California has a child support guideline formula that is used in all cases to determine the proper amount of child support. Generally, the courts and all attorneys in California use one of the two recognized computer programs based on the child support guideline formula called “Dissomaster” and “X-Spouse.”
The factors considered in making child support orders are primarily the gross income of the parties and the amount of time each parent spends with the minor child. However, other factors that can be considered include any itemized deductions the parties can claim on their taxes, medical insurance premiums paid each month, and any mandatory requirement payments and union dues for individuals whose employment requires them to be part of a union and to contribute to a deferred compensation retirement plan (i.e. a pension).
In addition to the basic monthly child support, the court will generally also order that the parents equally share the costs of childcare expenses necessary for the custodial parent or both parents to work, as well as any medical, dental and vision expenses for the minor child not covered or reimbursed by medical/dental/vision insurance.
Child support can also include expenses for the special needs of a child, such as tutors or other services, as well as the transportation costs for visitation of a parent.
Finally, the Court generally orders that both parents keep their child medically insured if it is available at no cost or at reasonable cost to both parents.
Child Support is generally paid until the minor child reaches the age of 18, or the age of 19 if they are still a full-time high school student at age 18, unless the minor child dies or becomes emancipated prior to becoming an adult.
California Child Support order can be modified if there is:
1. A significant increase or decrease in either parent’s income;
2. A change in custody or the amount of time the child spends with each parent;
3. Any other change that would affect the child support guideline calculations.
Generally, each county in California has a Department of Child Support Services (DCSS) governmental agency designed to wither establish, enforce, or modify child support support orders.
There are 2 types of cases opened by DCSS: Public assistance (i.e. Welfare) and Non-Public Assistance. If you receive public assistance, you have automatically assigned to DCSS or the State of California your right to receive some or all of you current and past-due child support. In other words, you may be receiving Public Assistance but the agency from whom you are receiving such assistance will go after the supporting parent to get reimbursement for such assistance.
For Non-Public Assistance, you can open up a DCSS case to establish a child support order (generally in situations where non-marital parents are involved) or to enforce a child support order made in a divorce or legal separation case. The benefit of opening a DCSS case to enforce a child support order is that DCSS is a part of the statewide and sister-state system of support enforcement and DCSS has powers of enforcement that include suspension of the supporting parent’s driver’s license and professional licenses, interception of state income tax refunds, etc., at no cost to you. Although DCSS deals with huge numbers of cases, the circumstances of your case may be such that opening a DCSS case is advisable once your attorney has established a child support order against the other parent.
Spousal support deductibility:
Spousal support is generally considered under state and Federal law to be tax-deductible to the spouse who is paying such support, and is reportable income to the spouse who receives such income.
Child Support deductibility
Child support is generally considered under state and Federal law to NOT be tax-deductible to the spouse who is paying such support, and so the spouse receiving such support does not have to report such support as income on his or her tax returns.
Custodial Parent Entitled to dependency exemption for children unless waived
Generally, state and federal law states that the parent who has at least 51% custodial timeshare has the right to claim the minor children as dependency tax exemptions on the income tax returns.
However, that spouse can waive such right and give the noncustodial parent the right to claim the children as exemptions, but it is advisable to have such wavier in written form. In situations where the on-custodial parent earns a much higher-income, giving the child tax exemption to that parent who will benefit much more by such exemptions may be a good faith gesture, but it is advisable to seek more support that what the non-custodial parent would have been liable to pay in exchange.
You should always seek the advice of a tax professional concerning tax issues and what the best course of action is in your particular case.
