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, 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.

The Connection Between California Child Custody & Support

Posted by: Gerald A. Maggio, Esq.

Divorce attorneys in Orange County; The Maggio Law Firm, Inc.Child custody are one of the biggest issues in Orange County divorce cases, with a large number of parents and spouses battling it out in bitter court cases. There are a large number of people however who fight their child custody and visitation cases with complete commitment but are unable to keep an eye on the financial implications of their child custody and visitation demands.

If you look at the California Family Code and the guidelines made through statutes for the calculation of the amount of child support. One of the most important features that these payments largely depend on is the amount of visitation and child custody a particular parent has. Simply put, the parent that has the larger amount of child custody will have to pay less child support to the other spouse if he or she is paying, and will receive a large amount of child support if they received it.

The Connection

When we look at California Family Code 4055, it talks about the factors that the California family law courts will need to take into account when deciding the amounts of support payments that will need to be paid. Some of the leading factors that need to be taken into account when deciding the amount of child support are:

  • The tax filing status of each parent
  • The amount of Income of each of the parent
  • Union dues
  • Deductions made for health care insurance
  • Tax payments on property etc.
  • Interest to be paid on mortgage
  • Number of children that are involved in the support order

While these may be important factors that would need to be taken into account, the most important factor that should be taken into account continues to be custodial time of the child allocated to each parent.

While there are a host of advantages of trying to have the large share of child custody, there are also a few leading drawbacks. While most of the parents look to get the largest amount of the child’s time for them to get hold of the extra child support, they often forget that the cost of raising a child is often more expensive than the child support payments you receive.

A Double Edged Sword

Making sure that you raise a child by fulfilling all their legitimate and reasonable demands in addition to providing them with the best education and quality life can seriously cost you a fortune. While you have gone tooth and nail to try and win custody, unless and until you take the future financial situation in sight before making your child custody demands, your sincere efforts will continue to backfire.

Options To Enforce Child & Spousal Support Orders

Posted by: Gerald A. Maggio, Esq.

Divorce Lawyers Orange County; The Maggio Law FirmOne of the leading reasons people continue to come back to the Orange County family law court is to enforce orders of the court. The orders of a court in relation to the Orange County divorce can range from supposal support orders, to custody orders, to orders for the division of assets, and in some circumstances even injunctions. The most important among these orders and the ones most commonly used are the child custody and child and spousal support orders.  Here are some options to enforce support orders.

Order of Wage Assignment

California law empowers the courts to issue an earnings assignment for all the support orders that they issue. This is a means to ensure that the payment of the spousal and child support is not made by the spouse but by the employers of the spouse directly through deductions from their monthly salaries.

This method is an effective enforcement of a court order since it keeps the paying spouse from reinvading on the orders of the court and disregarding them altogether. In cases where the parties have mutually agreed on the support being paid and the part fails to honor it, the company can again be ordered to pay the monthly amount from the parties’ paycheck.

Contempt Of Court Proceedings

The charge of contempt is usually applied to parties that are unable to comply with the court’s order despite being capable of carrying out the instructions mentioned in the court order and having full knowledge of the court’s order. There is however a legal rule that anyone who is accused of contempt needs to be proven to have committed the contempt beyond reasonable doubt. This means that the burden of proof for proving contempt is on the party that makes the accusation. A few examples of charges leading to contempt cases are failing to abide by child custody orders or pay child support. The penalties of contempt can include hefty fines and jail terms.

Writ of Execution

This is one of the measures that the parties can resort to in lieu of going back to court. The writ of execution is basically a writ in the court which asks the court to order the liquidation of the non performing parties’ assets and transfer the funds to the party that was promised said funds. There can also be other writs such as writ of seizures for matters related to property etc. This type of property order is often used in situations where the court’s order for asset distribution in an Orange County divorce case is disregarded by the either of the spouse.

Buyouts Of Community Property And Spousal Support In Divorce

Posted by: Gerald A. Maggio, Esq.

Orange County divorce attorneys; The Maggio Law FirmThe process of a divorce in California can be complex in nature. There are a large amount of cases in the Orange County family law court, each a unique case with its own complexities. Sometimes there are cases where one of the parties gets a community property buyout, and then that party wants spousal support too.  Are their demands justified in such a scenario? Here are some issues to be aware of.

Why Should A Spouse Get Spousal Support When She Gets Enough Community Property?

The answer to this question is simple – a spouse is generally going to get spousal support even if he/she has got a hefty community buyout because the division of community assets and the payment of spousal support are 2 separate issues.  The primary argument here is that just because a spouse has contributed to the growth of the community property doesn’t mean he/she should not receive spousal support. Any action for such is likely to be seen as a means of punishing the spouse for his/her contribution to an increase in the community property and that is likely to be an infringement of his/her rights.

Is There An Argument Against Payment of Spousal Support In That Instance?

The case we will look at is the Orange County divorce case of In Re Marriage of Martin in 1991. The lawyers of M. Martin, who was going through an Orange County divorce, wanted to limit the amount of spousal support to his wife. The divorce lawyers on Martin’s side argued that their client could not afford to pay to his wife spousal support in lieu of the fact that she had already received a substantial community buyout. The trial court disagreed.

The View Of The Court

The court held that spousal support and community buyouts are two different aspects of divorce. The court was of the opinion that one of them could not finance the other. This meant that the plea by Martin’s lawyer of having to pay no spousal support in lieu of the community buyout being received was rejected.

The simple conclusion of the case and of the principle here is that you cannot pay off your spouse with their own money and then refuse their claim for spousal support.  However, it is possible to negotiate a buy-out of spousal support as part of a divorce settlement, but to do so requires the knowledge and expertise of a competent Orange County divorce attorney to do it right and have it enforceable now and in the future.

A Review Of Marriage Of Andrea Left And Andrew Left’s Family Law Appeal Case

Posted by: Gerald A. Maggio, Esq.

Divorce attorneys in Orange County; The Maggio Law FirmIn this blog, we are going to review the Orange County divorce case of “In re Marriage of Andrew and Andrea Left”. This case is a unique one.  The case concerned the question of whether a commitment ceremony of an ex-wife with her boyfriend should be considered as a re-marriage amounting to her spousal support being cut by her former husband.


The facts of the case are that Andrew and his wife, Andrea, had a marriage that lasted less than 5 years. The marriage resulted in the birth of two children. In the subsequent Orange County divorce that followed, Andrew was asked to pay $15,000 for child support per month and $30,000 per month for alimony support. Andrea, in the meantime, met “Todd,” and ended the status of her marriage with Andrew through a legal Orange County family law procedure known as bifurcation of the marital status. Andrea and Todd subsequently wanted to get married and had a wedding ceremony planned and went through with it, yet with the case going on they didn’t want to formalize the marriage. They had a full wedding ceremony.


Now the question to consider in this case is that whether the ceremony that happened was actually a marriage ceremony. Andrea said no, and instead opted to call the ceremony a commitment ceremony. Todd and Andrea signed a document that is called Ketubah and is equal to the Jewish marriage contract. However, they did not obtain a marriage license.  Andrew Left argued that California Family Code section 4337 applied in the case, which states: “Except as otherwise agreed by the parties in writing, the obligation of a party under an order for the support of the other party terminates upon the death of either party or the remarriage of the other party.”  Andrew further argued that Section 4337 and its predecessors have been interpreted to include a ceremony that resembles a valid remarriage — regardless of whether the ceremony resulted in a valid marriage. In support of his position, Andrew cited three cases: Sefton v. Sefton (1955) 45 Cal.2d 872 [291 P.2d 439] (Sefton); Berkely v. Berkely (1969) 269 Cal.App.2d 872 [75 Cal.Rptr. 294] (Berkely); and Fry v. Fry (1970)5 Cal.App.3d 169, 170-171 [85 Cal.Rptr. 126] (Fry), arguing that these three cases show that it has been clear for decades that a ceremonial marriage, whether valid, void, or voidable, represents a “remarriage” as that term has been used in section 4337 and its predecessors.

The appellate court found that Andrew had provided no authority that the term “remarriage” as used in section 4337 means anything other than a remarriage carried out in conformity with the statutory requirements. Because Andrea and Todd did not meet those requirements, they did not marry, and Andrew’s obligation to pay spousal support did not terminate under section 4337.


Andrew further argued that the spousal support should be terminated because the marriage lasted less than 5 years and he had already paid the spousal support for half the duration of the marriage which is the general rule for marriages less than 10 years in duration.  The appellate court found that the trial court had correctly noted that: “The code provides a guideline, not a hard and fast rule that support should be paid for half the length of the marriage.” This guideline is found in California Family Code section 4320, which provides numerous factors for the trial court to consider when determining the amount and duration of spousal support. Among the factors that the court must consider is the duration of the marriage. (§ 4320, subd. (f).) The section further provides that the trial court shall consider: “The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of 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.”  The appellate court found that the trial court had not abused its broad discretion so as to fairly exercise the weighing process contemplated by section 4320, with the goal of accomplishing substantial justice for the parties in the case before it. The court noted that the trial court must consider the mandatory guidelines of section 4320, but once it does so, the ultimate decision as to amount and duration of spousal support rests within its broad discretion and will not be reversed on appeal absent an abuse of that discretion.


Finally, Andrew argued that the trial court erred in not terminating the spousal support order because his ex-wife, Andrea, was co-habitating with Todd.  The trial court had considered Andrea’s cohabitation with Todd, and exercised its discretion to continue the spousal support, at a reduced rate. The appellate court noted that the trial court had considered other factors, as well as the circumstances of the parties, as permitted under section 4320. Specifically, the court found that there was no competent evidence that Andrea could be self-supporting, and that Andrew had been slow to pay Andrea the amounts of community property that he agreed he owed her but still had under his control. Simply put, the court felt that Andrew could not “withhold money that rightfully belongs to [Andrea] and then argue his support should terminate.” Andrew presents no authority that the court’s consideration of the failure to turn over community property is impermissible, and the court upheld the trial court’s decision.

Andrew lost the case and all three reasons he gave were rejected. Andrew appealed the case.  The appellate court upheld the decision of the previous Orange County family law court and rejected Andrew’s appeal. The basis for the courts’ decision was that under California Family Code section 4337, the marriage of Andrea and Todd was not a legal marriage and therefore the courts could not treat it as such.

The issue of spousal support can be a complex one in California, and it is advisable to seek the legal counsel of an Orange County divorce attorney in your divorce and when contemplating a possible motion to modify or terminate your spousal support order in the years after your divorce case has been finalized.