Recent Posts in Temporary Spousal Support Category

Q.  My wife and I were married for 14 years.  We have two children, aged 11 and 13.  We are both in our early 40's.  My wife has a college degree, but quit working shortly before our first child was born.  I am a doctor, and she was a nurse at the local hospital before she quit.  Our divorce is not final.  I think she should be able to support herself once she gets some updated training, although I don't object to supporting our children.  She says she won't work until until our youngest child finishes high school.  What should I ask the judge to do and what should I expect to limit my spousal support exposure?

A.  There are a number of things you need to know. 

First, you have a long term marriage within the meaning of Family Code section 4336.  Start with the expectation that you will be paying alimony for at least half the length of the marriage.

Second, Family Code section 4320 sets forth the most important factors that a court is required to consider in issuing a spousal support award; it is also the decisive section for determining whether spousal support should be modified, reduced, or terminated in the future.  As to later modifications, this means that whatever the court decides as to the 4320 factors (or depending upon what facts are recited in your Marital Termination Agreement) may have a huge impact on how much you pay and for how long.  The 4320 factors only come into play when a final judgment enters:  Although courts are supposed to consider them in dealing with temporary spousal support issues, they typically do not.

Third, it is essential that you convince the Court to give your former spouse a Gavron warning.  I have separately blogged this concept. In essence its effect is to give a supported spouse something of a free pass to rehabilitate themselves and enter the work force until and unless they've been given advance notice of that expectation.  If you settle your case without going to trial, as I sincerely hope you do, make sure that a Gavron Admonition is included in your settlement agreement.  It starts the clock ticking on your former wife's obligation to become self-sufficient.  However, you need to realize that her ability to do so will be impacted by her child rearing responsibilities to whatever extent they exist, and most courts will consider this.  It becomes less relevant with older children.  Given the length of your marriage (14 years) your youngest child will be finishing high school right about the time that you reach half the length of the marriage.

Fourth, consider trying to get what is called a Richmond Order.  Essentially this is an order or an agreement to terminate spousal support jurisdiction on a specified date unless, prior to the fixed termination date, the supported spouse files a motion showing good cause to modify the amount of support or its duration.  Unlike most orders which are open-ended, a Richmond Order discourages delay and supports the goal of California that an ex-spouse receive support only so long as is reasonably necessary to get back on their own two feet.  They are generally not appropriate in extremely lengthy marriages, or  in situations where health or age makes it unreasonable to believe the other party can become self-supporting. 

Age is a factor in your case because there is still time for your Wife to develop financial independence. 

The effect of the Richmond Order is to place the burden upon the supported spouse to justify continuing support because of unforseen future events. Most judges prefer Richmond orders, but you won't get it unless you request it.  Attorneys representing supported spouses are less likely to agree to them in Marital Settlement Agreements at first blush.  There may be good reasons, however, that be persuasive if you persevere. 

Fifth, consider a request for step down spousal support orders where support is reduced in increments into the future; this may make perfect sense depending upon the length of marriage, whether there are children, and the supported spouse's age. 

Sixth, consider a Family Code section 4331 Vocational Training Examination.  Even if the Court concludes that it is not reasonable for your wife to work now, this may create an important benchmark which will be useful to you in the future.  Downstream if she does not obtain employment she arguably might have, the Court may be convinced it should impute income to her that might have otherwise earned.

At this stage of the proceedings you are setting the stage for a future reduction.  That requires smart advance preparation.  Find a competent spousal support attorney in your area!

By the way, this is exactly why you should want mediation rather than a court judgment.  IMHO.  Mediation takes the future into consideration, and creates a safe container for the parties to talk about it!

Thurman Arnold
http://www.DesertDivorceandFamilyLawyer.com

• If you can, try to research CCP § 1008, including looking at some legal treatise or the reported appellate decisions that mention it
• New or different facts don't generally include things you forgot to mention, unless you have some really credible explanation of why you forgot
• You must explain to the Court what you learned, how and when you learned it, why you didn't learn it earlier, and why these new or different facts matter enough that the Court should render a different outcome.  If the other party withheld facts that you became aware of only after the hearing, you need to describe your reasonable diligence in having attempted to first get all the facts
• New facts are not the same as different facts.  Be specific
• Telling the judge you just think she was wrong is rarely helpful - judges know they will be wrong some of the time, and they are trained as much to just make a decision as to get it right (clearly they want to get it right).  Most of us don't like being told we are wrong and that is rarely a useful persuasive tool.  Instead, focus on the justice or injustice of the situation and be humble
• Explaining that you made a mistake without more is also risky, because lawyers and parties do make mistakes in presenting their cases but the law favors finality in decision-making.  Your  mistake needs to have been a reasonable one. 
• Always consider combining your reconsideration request with a request for relief under Code of Civil Procedure § 473, which is a very important statute that covers relief from orders or judgments that result from your inadvertence, surprise, mistake, or reasonable neglect

In your situation the question will be:  If you knew 10 days before the hearing that your time had been cut back, why didn't you mention it?  If you did mention it, then the Court considered your evidence and ruled against you, so this would not be new information. 

Also, how different would the outcome have been if the Court had considered or known of the cut backs in your work?  For instance, if those cut backs are partial and your income is 15% less than the Court supposed, this may not seem so important to the Judge that she thinks she needs to correct the unfairness of the result.  If it is 40% less, she might.  There are no hard and fast rules that can be applied with consistency.

It is quite common for clients to wind up hiring attorneys after they attempted to handle their case on their own, and it blew up at the hearing, and now they need desperately to get more or better information in front of the judge.  It is very difficult to "unring the bell." 

When these things happen they are a good lesson of why the adversarial court process is to be avoided whenever possible, and of the importance of finding and listening to a competent lawyer early on in your case.

Thurman W. Arnold
http://www.ThurmanArnold.com

Q.  How is child support calculated in California?  I have heard about "Guideline Support" but am wondering what this means?

A.  In 1993 California adopted a Statewide Uniform Guideline to come into compliance with a federal mandate.  (Family Code section 4050).  This followed wide variability of orders and a prior failed attempt to ensure predictability.  Its effect was to greatly increase the monies available to children and to begin to end gender bias in assessing support.    Family Code section 4052 requires California court Commissioners to adhere to the uniform guidelines and to "depart from the guideline only in special circumstances...." 

Family Code section 4053 lists principles to be followed by the Court in implementing the guidelines.  This is a statute worth reviewing, and using to remind family court judges of what our State child support policy is.  These include the directives that:

(1)  A parent's first and principal obligation is to support their minor children "according ot the parent's circumstances and station in life."

(2)  Both parents are mutually responsible.

(3)  The guideline must take into account each parent's actual income and the level of responsibility for the children.

(4)  "Each parent should pay for the support of the children or according to his or her ability."

(5)  The interests of children are the State's top priority.

(6)  Children should share in the standard of living of both parents.  Child support may therefore be appropriately used to increase the standard of living of the custodial household to improve the lives of the children.

(7)  Disparities of living standards in both homes, particularly where both parents have high levels of responsibility for raising the children, should be minimized through the use of guideline child support orders.

(8)  A parent having primary physical responsibility for the children (a term that is nowhere defined in the Family Code) is presumed to be contributing a significant portion of their available financial resources to the support of these children.

(9)  The guideline is intended to encourage settlement between parents by creating predictability.

(10)  The guideline is presumptively correct in all cases, and ony in special circumstance should child support orders be less than guideline.

(11)  Child support orders must reflect the greater standard of living and costs of living in California as opposed to other states. 

California Family Code section 4055 sets forth the formula for assessing guideline support.  Don't even bother to look at it, you will need to be a mathematician or logics teacher to understand or explain it.  While gross income numbers (or imputed income) are used, the guideline tax effects this income so that net income is generally what is determinative - however, this complicates doing the math.  The percentage of parent's income allocated to children is called the "K" factor, and this number moves depending upon how many children there are.  It assumes, for instance, that 26% of the joint income of most families is spent on families with one child, and 60% where there are three children.  Forturnately these calculations are done for us through computer programs.  The most common are the Dissomaster and Xspouse, which I will explain further in another blog.  Riverside County in Indio utilizes the Xspouse.  The Xspouse is a spin off from the people who devised the Dissomaster, after they had a parting of the ways.

Child support always takes precedence over spousal support, or personal expenses.  Relative timeshare between the parents is a major factor in using the formula - the higher the noncustodial parent's timeshare, the less they pay. 

Unfortunately this means in practice that there is much legal wrestling between parents about timeshare that has nothing to do with the children's best interests but often everything to do with economic warfare.  I write about this in separate articles detailing Collaborative Law processes where we attempt to refocus parents on best interests rather than legal rights (per the guideline formula, for instance) so that primary parent's (often mothers) will give up more custodial time and fathers will pay a little more for this time and then actually undertake using that time (as opposed to having it on paper in a court order, but generally ignoring the increased responsibilities).  Please see this link to our Collaborative Divorce Team.

Importantly, even when courts order child or spousal support to women, studies have shown that most children who are entitled to child support from their fathers never receive it (Huang, Mincy, and Garfinkel, 2005). There may be a number of reasons for this. One determinant of fathers meeting these obligations is their ability to pay.  Researchers have found that when child support obligations exceed 35% of a father' sincome, he is less like to comply (Meyer and Barfeld, 1996).  Lower earner fathers are generally required to pay a higher proportion of their income in child support in child support than higher earners, which pressures the poorest members of our society (Huang, et al., 2005).

Women in heterosexual relationships, as single parents (or child-caretaking partners), are at greatest risk of becoming systemically impoverished (Strong, et al., 2008). Following divorce, women are principally responsible for both child-rearing and their own economic support. At a minimum a woman may suffer a significant decrease in her financial condition. Studies have shown that a single mother's income may decrease by twenty-seven percent or more.  (Peterson, 1996; Smock, 1993).  [Please contact me if you want the actual citations to these studies].

These realities may or may not interest you.  They do affect children and parents in very deep ways, nonetheless.

In any event, now that you have the background I will provide more detailed information on how the Xspouse and Dissomaster programs work in practice very soon.  Try using our search engine at the upper right corner of any page on this site and you will find those articles when they are up.

TWA

Q.  I remarried in August, 2009, and my new wife is a doctor.  She has one child from her prior marriage and I have two.  I am still paying my former wife alimony and child support even though the kids we have together live at our home 40% of the time.  I have been hit hard by the economy and we largely depend upon my wife's medical income to make ends meet.  Now my ex is threatening to take me back to court to increase my support based upon my new wife's income, while my own income is down from when the court last decided it.  My new wife is upset at the idea that my ex can learn anything about the medical practice or income.  What should I do?

A.  If there has been a material decrease in your income since the time of your last order, you may safely file a support modification motion to lower your child support and to lower or possibly terminate your spousal support.  Whether that is advisable based upon your numbers has nothing to do with your new mate's income, and should not cause you to hesitate - but again, it does depend on the actual respective numbers between you and Wife 1, which you did not provide me.  You also need not worry about W1 filing a motion to increase (you can't stop her, but she will not win based on W2's earnings).  Maybe you should give her this link so she will think twice.

California law is quite clear that new mate income cannot generally be considered against you in ordering or modifying child or spousal support.  The controlling California Family statute is section 4057.5.

In the normal situation, Family Code section 4057.5 leaves the Court no discretion to consider your new wife's earnings, period.  You do not need to report those earnings on your FL-150 (Income and Expense Declaration). This is a statement of California legislative policy effective in 1993 when this section was added to the Family Code.  This is true for both spousal and child support.

However, section 4057.5 does contain an exception for the "extraordinary case" which the statute makes clear is intended to address situations where "where excluding that income would lead to extreme and severe hardship to any child subject to the child support award" or where "a parent ... voluntarily or intentionally quits work or reduces income, or who intentionally remains unemployed or underemployed and relies on a subsequent spouse's income."  Even if the court were to find a severe hardship on the children of marriage number one, it would be required not to impose a severe hardship on your wife's child by reallocating her income to you for purposes of supporting your two children. 

In practice, so far, Courts almost never find facts sufficient overcome this clear statutory prohibition.  So far there is no published California appellate decision defining these extraordinary circumstances.  No doubt one day someone will so abuse this protection and hide behind it that we will get a reported decision that fleshs out how bad someone needs to behave before the protection is lost.  But "extraordinary" means really extraordinary.  In the average case, your new Wife has nothing to be concerned about. 

With regard to attorneys fee awards, however, there is authority for an argument that new mate income may be considered in granting or denying an attorney fee request, but the odds are against a judge doing that.

Incidentally, this section also applies to income from nonmarital partners as well as new spouses.  In one reported case (IRMO Loh), a trial court was reversed for inceasing dad's child support obligation after the mother produced photos of the father's "lifetyle" to show imputed nontaxable income in the form of his new girlfriend's contributions to him, since she paid for all his toys. 

The new mate question is a subset of the "imputed income" situations where a father or mother may quit work or reduce hours because they are relying on their new mate to contribute the difference.  That is not likely going to be an extraordinary case, but  W1 can separately seek to impute income to you on the basis that you have a higher earning capacity than you are exercising.  Earning capacity and imputed income is a blog for another day.  Also, I will mention here that another argument exists in favor of W1 that has nothing to do with the right to obtain the records or income of W2:  Equalizing the lifestyle's of the two households where yours is rich and grandiose and W1 is impoverished (an extreme example) pursuant to FC section 4057(b)(4).

The tax returns are privileged as they relate to your new wife's medical practice.  For instance, if she is a medical corporation (which I recommend be set up), she will almost never be forced to divulge those records.  Even as to your joint returns, you may be entitled to redact the information concerning your new spouse or have the Court review them in camera (meaning they are not turned over to the other side).  Your former mate is entitled to see your side of the tax returns, however, and they are not insulated from scrutiny simply because you filed joint with the Doctor Wife.  If you don't file jointly, your former wife will almost certainly never get her hands on your new wife's Married Filing Separately (MFS) returns.  Structuring things this way may or may not be advisable and you should consult a tax accountant.

An interesting twist here is that because you marry a higher, wealthy earner, your taxes actually increase because under federal IRS (and the California FTB), you are responsible for one-half of your new mate's income - and this is true even if you don't file jointly.  One case (County of Tulare vs. Campbell) has held that this additional tax you become liable for can form the basis for a reduction in your support because you have less net income available for support after the tax hit is deducted.  Hence, based on these tax consequences you may have an additional argument for decreased support - although a Court may try to deny you some discretionary offset to even the score since this feels a bit unfair to the spouse who is  primarily supporting the children and so lessen the downward modification.

The take-away:  So long as you are not playing games, have not intentionally reduced your income by relying upon your new mate's income, and there is no really extraordinary difference in the two households, your new wife's income is just not relevant and so it is protected.

Q. Can child support orders be made retroactive in a court proceeding?

A. Except when the county has paid benefits, or possibly where a third party has provided necessaries like food, shelter, or clothing for the benefit of a child living with you under certain circumstances, the earliest a support order can be made effective is the date any initial pleading is filed in a court proceeding.  FC Section 4009.

However, if you were not served with the papers within 90 days of that initial filing, support can only be ordered retroactive to the date a motion seeking support was filed.

Most judges will order support retroactive to the first or the fifteenth day of the month.  This means that if you file for support on April 2nd, your order may only go back to April 15 but if you filed March 27th, your order would become effective on April 1.  You should time your filing to maximize retroactivity.

To the extent your partner has contributed monies to your support voluntarily before the order becomes effective, they will usually receive a credit off-set against the support award for the time period in question (i.e., if support commences April 1, they will not likely receive credits for payments made prior to that time).  These payments do not need to be paid to you directly for the credit to apply, as where a mortgage or rent payment is made.

Q.  I have two children from a previous marriage.  I remarried two years ago, and my new spouse earns $8,500 month.  While my hours have been reduced during this recession and my monthly gross averages $3,500.  The ex is threatening to take me back to Court to increase child support based upon my new mate's income.  Can she do this?

A.  Of course ex-spouses can always take the other back to court, but that doesn't mean they will win.  We call these support modification proceedings.  In order to obtain a new order, she must prove there has been some material change of circumstances with regard to her needs, the childrens' needs, or your ability to pay a greater sum in support.

The key California statute on when and how new mate income can be considered is Family Code section 4057.5.  The basic rule is that courts cannot consider new mate or nonmarital partner income in the context of making child support or support spousal orders.  This means as a general proposition that your new wife's income of $8,500/month is not to be inputted into the support guideline formulas. 

There are two exceptions where new mate income may need to be disclosed and where it can be considered in setting child support:  1) Where there are "extraordinary circumstances" that would cause the exclusion of this income to create an extreme or severe hardship to a supported child.  However, if this hardship is shown, the court must first consider the effect of inclusion of new mate income on any other children including the new mate's children, and so that their interests trump the hardship to the child for which support orders are being sought.  2) By marrying somebody with high earnings, a spouse will pick up additional taxes based upon the other's income.  Since as far as the IRS and California Franchise Tax Board (FTB) is concerned, you are liable under community property laws for one-half of your new mate's income, regardless whether you file jointly, the added tax consequences upon this additional income can actually be the basis for a downward decrease in child support (County of Tulare v. Campbell) since there is less after tax income available to you from which to pay support.

There are very few reported California appellate decision on new mate income or which explain how FC section 4057.5 is to be applied.  In Marriage of Loh (93 CA4 325) a mother/former spouse convinced a trial court, based upon photos of the father's extravagant lifestyle (homes, cars, etc.) which were funded by his girlfriend's income and assets, to impute income to him for purposes of basing a child support award.  The appellate court reversed, stating "Evidence of lifestyle, particularly a lifestyle subsidized by a new 'nonmarital partner', is not a cheap substitute for proper discovery of income reported on tax returns."

In a very recent appellate decision (Marriage of Knowles (Oct. 2009) 178 CA4 35) a trial court was reversed after it accepted the former wife's argument that the community property income and assets of both he and his new wife should be used to determine his income available for support.  The trial court's mistake was include the half that belonged to the new wife, although it could have included just the half that belong to him.   There was no evidence of extreme hardship that justified considering the new mate's half. 

We’ve waited a long time for another case dealing with consideration of new-mate income under Fam C §4057.5. One of the few cases that has, In re Marriage of Wood (1995) 37 Cal.App.4th 1059 is cited here, but it came down in 1995. Neither the statute nor the cases provide any definitive answer regarding what actually constitutes either an “extraordinary case” or an “extreme and severe hardship,” although Wood seems to say that new-mate income can be considered where one of the parents is voluntarily unemployed or underemployed.

Rather than arguing for NMI (new mate income), a party seeking to have income assigned to a person who has remarried or is living with a nonmarital partner may find more success by arguing that income should be imputed to that spouse on the basis that they have an earning capacity which is not being realized.  For instance, if because your new spouse had sufficient income you chose to quit work or take a lower paying job it might appear you are shirking your support responsibilities.  Rather than charging you with NMI, a trial court could find that you had the ability to earn X dollars a month and so charge you for this phantom income by making that the basis for a support award.  Then, the community property (including your new mate's share) could be tapped to satisfy this obligation.

Incidentally, a California prenup can be an effective way to limit this exposure.

Q.  What rights do I have to permanent spousal support?

A.  Permanent spousal support is not usually "permanent," although it can be in cases of very long marriages.  Lawyers and judges also refer to it as post-judgment spousal support, alimony, judgment spousal support, or long term support.

Unlike temporary spousal support, long term spousal support is only issued after a final judgment of Dissolution of Marriage or Legal Separation.  It is equally available to domestic partners.  Also unlike temporary support, it is not based on any computer formula or state or county guideline, but must be determined and fixed depending on the facts of every individual case.  If long term support is important to your future wellbeing, you are going to need an experienced support attorney.

There are several very important rules to keep in mind.  First, a marriage in California which lasts more than 10 years (defined as the time between date of marriage and physical separation), is "long term" marriage.  The general rule is that in marriages which are not long term, spousal support should not be payable for more than one-half the length of marriage - or to put in differently, the law presumes that the recipient spouse should be rehabilitated and so become self-supporting in a period equal to 1/2 the marriage.  However, this presumption becomes less important in cases involving older couples, especially where people can not be realistically expected to re-enter the work force, in cases where there children who remain minors, or where the party asking for support has a debilitating disease or disability.

There is no magic ratio for how long a former spouse might be ordered to pay long term support.  Each case depends upon its own facts, the quality of your attorney, and the attitudes of the family court judge.  Even in cases of long term marriages, the support obligation typically will end at some point in time.  However, if usually will not end on its own - meaning that when a trial court orders long term support it will reserve jurisdiction to continue to extent it, until some time when a party petitions the court to terminate support and a judge finally says "enough is a enough." 

Imputed income is often an important argument in long term support marriages, where one party convinces the court that the other party is shirking or failing to genuinely try to become self-supporting.  It is sometimes necessary to have the supported spouse evaluated by a vocational rehabilitation expert. 

There are four components to an award of of permanent support:  1) Amount; 2) duration; 3) substantive increases or decreases over time; and 4) jurisdictional step downs and ultimately a termination date.

Second, Family Code section 4320 is a critical support statute.  I have provided a link and uploaded it so that you may read it.  Essentially it sets forth all the factors that the court must consider in setting post-judgment support, and you will see that it is not an exhaustive list and the court can consider anything else it deems important to the decision.  Support factors include the extent to which the earning capacity of each party is sufficient to maintain the marital standard of living established during the marriage, considering:  a) the marketable skills of the supported party, the job market for those skills, the time and expense required to train that party including education and b) the extent to which the supported party's present or future income earning ability is impaired by periods of unemployment or were incurred during the marriage to permit that party to devote time to domestic duties.

Another factor is whether the supported party contributed to the attainment of an education, training, license, career, or position by the supporting party. 

Another factor is the ability of the supporting party to pay, taking in account that person's earning capacity, income, and assets and standard of living.

Another very important support consideration is the needs of each party - including both. 

Another factor is the obligations and assets of each spouse, including the separate property which each has or gained upon the dissolution.

Another is the ability of the supported spouse to engage in gainful employment without interfering with the needs of dependent children in their custody.

The age and health of the parties is critical in some cases.  65 years of age is the presumed retirement age for adults today, and courts cannot order a person to continue to be employed beyond that age - but, if they make that choice, their income can be considered.

A documented history of domestic violence can affect the right to receive support or the obligation to pay it.

The tax consequences between the parties must be considered.

And, basically, as I said, any other specific facts that trend one way or another.

The three most common factors are the marital standard of living (MSOL), need and ability to pay, and the assets the parties end up with upon divorcing.

Courts cannot order lump sums for support.  Spousal support is generally taxable to the recipient and deductible to the payor, but there are very specific IRS requirements that must be met for this to actually be so.

Courts are required to state their findings on each relevant issue in writing.  In practice though, most people settle their divorce cases by way of settlement agreements.  Unfortunately, lawyers often leave out these findings so that when a court is asked, down the road, by the payor to terminate or decrease support, or by the payee to increase it, there is no map for the court to use to base its modification findings on.

If support is an issue for you either way, please hire a competent lawyer.  There are many attorneys moving into family law from civil practices who are clueless about these things.  Caveat emptor!

Q.  How is temporary spousal support calculated in California?

A.  In order to be entitled to spousal support, parties must be married or be registered domestic partners.  Spousal support (which is not usually referred to alimony in California) is available in dissolution proceedings, actions for legal separation, and in connection with domestic violence applications. 

Spousal support orders may be temporary, or they be what is called permanent.  Different rules apply to how temporary support is figured than to permanent or long-term support.  I address permanent spousal separately.

Temporary spousal support is designed to preserve the status quo pending a final judgment.  Family Code section 3600 provides that during the pendency for dissolution of marriage or legal separation or in any proceeding where there is at issue the support of a minor child, the court may order the husband or wife to pay any amount that is necessary for the support of the husband and wife (subject to limitations contained in FC section 4320 and FC section 4325).  Again, parties dissolving domestic partnerships may also be awarded support.

Temporary spousal support has nothing to do with the length of the marriage.  Courts look at what the spending pattern was pre-separation and issues a spousal support award based upon need.  If there isn't enough money on the basis of need, then an amount is ordered based upon the higher earner's ability to pay.  A party seeking spousal support isn't deprived on the right to receive support even if they have income - the question is the relative income circumstances of the two parties.

Most California counties have formulas that determine temporary spousal support, but the two most important are Santa Clara and Alameda counties.  Essentially the spousal support formula for Santa Clara County - which is the dominant one - is as follows:  From any amount which is not allocated to child support, take 40% from the net income of the payor spouse, less 50% from the net income of the recipient spouse.  The resulting number is the temporary spousal support.  You do not need to have children to be entitled to receive spousal support.

As a practical matter, courts typically use one of two computer programs that generate these numbers:  Either the Dissomaster or Xspouse.  The Indio courts use Xspouse and the Santa Clara guidelines.

Into one of these programs are inputted the respective gross incomes of the parties.  If there are children of the parties, the custodial timeshare in percentages is inputted (because only a party who has physical custody for more than 50% of the year can claim the tax benefits of HH/MLA or head of household status, the programs require one to be considered to have 51% even in true joint custody arrangements). 

Only certain expenses matter for purposes of temporary support in California.  What doesn't matter at all is most personal expenses (like mortgage payments, utilities, debt).  This effectively ignores the entire debt structure of the parties at time of separation.  Health insurance, union dues, and mandatory contributions to retirement (i.e., typically not IRA contributions), and obligations existing to other minor children living in one party's home, or as to which an actual court order requires they make support payments, are also entered.  The support program 'tax effects' these numbers and figures out the net incomes of the parties.  It renders a number that tells the Court how much the higher earning spouse must pay for purposes of a court order.

Since the court determines the support obligation some weeks after a request for support is made (by way of Motion for Order to Show Cause application), it typically makes the support order retroactive to the date of the filing for the request.  Most courts order support payable one-half on the first and fifteenth of the month.  For this reason, if you file for support on the 5th day of the month, the court will not make support retroactive to the 1st but will start of the obligation on the 15th day of the month.

This might sound like temporary spousal support is easy to fix and who needs a lawyer?  This is not at all the case.  The final support numbers depend begin with how much income the Court is attributing to each party.  Each is required to submit before the hearing an Income and Expense Declaration ( form FL-150).

For instance:  A husband's (and wife's) income numbers are usually but not always based upon historical earnings, and the California judicial council form ( FL-150) requires both to set forth there total gross for the past 12 months and also the past month.  The legal assumption is that historical earnings are a reliable guide to future earnings, but this may not be at all true.  Especially in today's economy, historical earnings may not be indicative of what the income stream will be going forward.  This information needs to be credibly presented to the Court.

In cases where one party is a self-employed spouse, their net pre-tax earnings must be determined after deducting business expenses.  This is a common and complex area of dispute, because what is deductible for purposes of Schedule C accompanying a tax return according to the federal government is in no way binding upon California courts for purposes of figuring support.  If somebody works from home and charges part of the mortgage expense as a business deduction, that expense may be added back into the income stream as being available for support.

Another support battleground often involves imputed income.  What if one party refuses to work, or insists on working at a lower paying job?  Perhaps a support recipient believes they will get more money from their spouse if they have no job but if they tried to get one, they could?  What if one party claims that they aren't working and that no jobs are available?  Imputing income cuts both ways, and is extremely sophisticated. I will address another blog to it.

Incidentally, while only temporary alimony is calculated in this way, child support is always figured in this manner regardless whether there is a spousal support obligation.

QUESTION:  Is overtime a factor in considering child support?

I am a mom in San Diego County.  There are court orders out of El Cajon for joint legal custody and sole physical to me.  The old orders said I could move anywhere within San Diego County.  I just changed our son's school to north county San Diego.  I want to remarry, and have been living with my fiance for 4 years.  I believe the schools are better here.  Now our son's father is trying to force me to keep our son in the old school south of here, or to take custody.  He says the school our son was in is better.  I would have to drive 70 miles for school drop off and pickup.

I have no money for attorney fees because my last lawyer had only a year's experience, and she upset the judge and now I am out $10,000.  We have a hearing in 3 days.  Please help.

Mellissa

Attorney Fees Question/Assuming There Are Any Further Hearings

You are requesting attorney's fees because the issues involved are some of the most complex in this area of the law (parent relocation), and you are entitled to be on a parity with Mr. Tr xxx, who has been able to retain competent counsel. 

Specifically, tell the Court your request is also made under authority of Alan T.S., Jr. (4/2/09) 172 Cal.App.4^th 238 and In re Marriage of Keech (1999) 75 Cal.App.4^th 860.  Tell the Court that you are in pro per but do not want to be, but that obligation of supporting the child from this marriage plus the financial burden of your other handicapped child, makes it impossible for you to obtain legal representation without an order that Mr. Txxxx pay these fees.

1)      Establish that the final, current order, is for joint legal and sole physical custody to you.  Mr. Txxxx  rights are for visitation only, but not custody, absent a modification of the current orders upon a showing by him of a material change of circumstances.  Your move and the child’s new school is not presumptively, without more, a sufficient change of circumstances to warrant a change of custody even assuming he asked for it (I don’t know if he has).

2)      As the parent entitled to the day to day supervisory control of the child per FC section 3007 (defines sole custody), you had a presumptive right to relocate.  This is the same right codified in FC section 7501.  You have custody; dad has visitation rights.  (Btw, his visitation rights are not being negatively impacted by the move, by his own admission, since his objection only involves relative school ratings).

3)      As to the joint legal custody label, this only grants each of you the rights under FC section 3003 (decisions regarding health, education and welfare) during your respective custody and visitation times.  FC section 3083.  It is does not obligate you and he to agree on schooling absent a court order saying you had to first, per 3083, and it must be specific and mention “schooling” (I assume this is not the case).

4)      Even though you were not required to do it, you gave dad notice per FC section 3024 that you were moving north and changing the child’s schooling.  F’s atty intimidated you into filing a motion for permission to make the move, when they probably were the one’s obligated to file a motion to restrain the change, and so you have acted in good faith.  This is particularly true given the court order from (the ealier date) stating you can relocate anywhere within San Diego County.

5)      It is very important if their responsive declaration did not check the change of custody box, and if their paperwork only asks to restrict the change in schools – you need to be sure you are right about this before making the argument -- BUT if they are not seeking a modification of custody, then you have the right to move [7501] and change schools [3003/3083] and there should be no need for any further hearings and your application must be granted.

6)      Next, ONLY IF THEY’HE REQUESTED A CHANGE OF CUSTODY, then the next analysis is:  That this is not a de facto joint parenting agreement.  This not a Burgess footnote 12 case (which requires a “de novo” best interests of the child hearing only where there is true parenting agreement).  Here the timeshare numbers become important – you want him as low as reasonably possible without sounding incredible.  This is a straight Burgess situation, and therefore you have the presumptive right to move and you do not need to show that the your move was “necessary” or even in good faith, except with the added benefit to you that Burgess involved temporary orders and so the court had to do a best interest of the child analysis, while your case involves “permanent” orders and so that is not a ground for an evidentiary hearing (best interests was previously decided in your favor and the question will be not be reviewed again absent Dad showing a change of circumstances).

7)      Changing schools is not an adequate CoC as recently held by the California Supreme Court in Brown and Yana (2006) 37 Cal..4th 947.  There, like you, a parent with sole physical custody sought to move a much greater distance from the dad – Las Vegas.  Dad’s objection was that the schools in LV were inferior.  He wanted an evidentiary hearing before the move would be allowed, and he sought a change of custody to himself if Mom moved anyway.  The trial court correctly refused to allow an evidentiary hearing because the Father had failed to allege sufficient facts showing a detriment to the child by simply claiming the relative merits of schools.  Courts won’t step into that qualitative battle.  Instead, F needs to show that you are attempting to frustrate contact, which clearly is not the case, or some other “detriment” in his responsive declaration.  His failure to do so means he is not entitled to an evidentiary hearing.

8)      Since he is not entitled to an evidentiary hearing, even though a mediation is appropriate in the next month, it would be improper for this court to issue any orders that restrain your son’s ability to start school on 8/20/09 as planned.

9)      Father has failed to meet his burden.  You need attorney fees to retain competent counsel for any further hearings.

10)    Finally, under FC section 3044 there is a rebuttable presumption that dad is not a fit person to be a joint custodial parent because of the DV orders.

Best of luck on this.  If you get a court order for attorney fees, hire someone!

Thurman Arnold