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.

FACTS OF THE CASE

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.

DID THE COMMITMENT CEREMONY CONSTITUTE A VALID REMARRIAGE?

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 LEFT’S ARGUMENT THAT HE HAD ALREADY PAID SPOUSAL SUPPORT FOR ONE-HALF OF HIS SHORT-TERM MARRIAGE

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.

DID EX-WIFE’S CO-HABITATION WITH HER BOYFRIEND ENTITLE ANDREW LEFT TO TERMINATION OF SPOUSAL SUPPORT?

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.

The Importance of The 10 Year Mark in California Marriages

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce lawyers; The Maggio Law FirmHave you been in a marraige longer than 10 years? California defines a marriage of 10 years or more as a marriage of long duration, meaning that the court will have continuing jurisdiction over the issue of spousal support, compared to a short-term marriage of less than 10 years where someone entitled to spousal support will generally only receive it for one-half the length of the marriage.

People that have been married for 10 years or more in California have the potential right of being paid alimony payments and spousal support for as long as he or she needs it, if they are in a weaker financial position than their ex. It is also important to note that this payment continues for as long as the other spouses are able to pay.

The situation is going to play an important part in the benefits of spousal support that you receive after having had a marriage of more than 10 years. The best case scenario is often for both parties to mutually decide that the spousal support shall  be paid over a particular time period and then terminated, if it makes sense to the party receiving such support. It is also an option for one party to be waive their right to spousal support and adjust it and the rate at which it needs to be paid at a later date.  It is very important to understand your legal rights and obligations concerning spousal support and highly advisable to seek legal advice and counsel on this issue before ever making any decision.

Also, although generally the issue of Social Security benefits is not one handled in divorce cases, it is important to at least understand that the Social Security administration also takes longer duration marriages into account regarding benefits.  In addition, depending on the earnings that your former spouse makes, you will be eligible to receive the Social Security benefits once you reach your age of retirement.  Another advantage that you may receive is derivative benefits based on what will be able to collect because these are based on his/her earnings over the course of their career.

Health Insurance and California Child Support

Posted by: Gerald A. Maggio, Esq.

best divorce attorneys in Orange County; The Maggio Law FirmIf you take a closer look at the California child support orders, you can usually note that they have the cost of health insurance factored into the child support number’s guideline. While most people are aware of the fact that the health insurance cost has been factored into this guideline, the reason for this action is still unclear on most people. In this blog, we are going to talk about how the Orange County family law courts consider the health insurance coverage in the child support order.

Before we talk about this aspect however, let’s take a look at what health insurance actually is. Health insurance in reality is when your medical costs are covered by an insurance that is paid for by deducting a certain amount from your monthly or yearly pay.

If either of the spouses has a health insurance coverage, the courts are likely to order that parent to continue with that health insurance coverage as long as that insurance is available to the child at no cost or at a very low/reasonable cost. It is important at this point to identify that health insurance is likely to cover not only hospital costs but also costs that are incurred on vision and dental care. Health insurance is often needed to be maintained and the most common way of doing so is by getting an amount deducted from the gross pay that is ordered in addition to the California child support number.

As far as the effect of this order is concerned, it can be termed as one that is equal in its importance to that of a child support order. The family law court has the power to, in case of non compliance of this order, to punish the non-compliant spouse. The fact that child health insurance factor is added in the child support order means that the addition of the health insurance cost coverage of the child will reduce the amount of child support that such a parent would have to pay.

It is important to be able to distinguish the uninsured medical costs from the insured medical cost coverage. It is also worth noting that in case one parent is spending on the costs of the child’s medical care, even though the child has insurance coverage, that spouse is unlikely to receive any kind of reimbursement against those costs. In some circumstances however, the courts can take into account the situation of the case and are likely to award the other spouse to pay the paying parent a reimbursement of 50% of their amount.

Calculating Net Disposable Income for Child Support in California

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce attorneys; The Maggio Law FirmWhen couples go through an Orange County divorce, the assets and the kids in the divorce are shared between the spouses. The courts usually order one spouse to pay the other, who has the greater share of the child’s custody, the child support amount. This amount is specifically given to be used for the welfare and well being of the couple’s child(ren). The amount of child supports is calculated using the spouses’ net disposable income. There are several considerations that should be taken into account when calculating the net disposable income. Here is a list of the things that affect the amount of net disposable income in child support calculations:

Health Insurance decreases the child support

The deductions for health insurance and their premiums are done from the gross income. The amount of such deductions depends on the number of children you have. Health insurance premiums are factored into the support calculation for each parent.

State and Federal Taxes and their effect on the Net Disposable Income

These are the amounts of taxes you pay on a yearly basis, such as income tax.  What is relevant is the tax filing status of the parties, and that is often dependent on which parent has over 50% custodial timeshare to be able to claim “head of household” filing status.  The tax deductions from your income are proportionate to the way you and your spouse file their taxes. At this point, it is vital to understand that the tax filing status of the spouses should be consistent.

Union dues and Retirements benefits

The mandatory union benefits deductions and retirement’s benefits that come in line with mandatory pension contributions can be deducted by Orange County divorce lawyers when the net disposable incomes are being calculated. If someone only makes voluntary, discretionary  contributions to a 401(k) plan or IRA, these aren’t deductible.

Expenses related to one’s job

In child support calculations, it is not unusual to see the courts allow the parent’s deduction in their net disposable income for expenses pertaining to their jobs. This, however, is only allowed by the court if the parent is able to show that the expenses are important, necessary, and reasonable for the person to classify as expenses on his job. These expenses shouldn’t be mistaken with the business expenses though, that are deducted when the courts are deciding the spouses’ income.

Child custody and child support cases in California are the most contested ones. Even after their  divorce, couples are always looking to get the best for their children. In such cases, it is important to realize that child support calculations can sometimes be complex and seeking the advice and counsel of a family law attorney in Orange County or where you otherwise live is highly recommended.

What Is The Difference Between Temporary And Long-Term Spousal Support In California? (PODCAST)

Posted by: Gerald A. Maggio, Esq.

child support attorneys in Orange County; The Maggio Law Firm

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.

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How Do California Family Courts Determine Child Support? (PODCAST)

Posted by: Gerald A. Maggio, Esq.

Divorce attorneys in Orange County; The Maggio Law Firm, Inc.

Welcome to The Maggio Law Firm’s PODCAST explaining how California Family Courts determine child support.

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http://www.maggiolawfirm.com/wp-content/uploads/2014/12/How-Do-California-Family-Courts-Determine-Child-Support.mp4

Should You Fight Your Orange County Child Support Case?

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce lawyers; The Maggio Law FirmChild 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.