California Family Law Attorney
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December 13, 2010
  2011 REVISIONS to the California Family Code: Serving POST-JUDGMENT OSC's and MOTIONS
Posted By Thurman Arnold, CFLS

Effective January 1, 2011, you may serve post-judgment motions to modify custody, visitation, or child support orders by regular mail and file with the Court a declaration of mailing.

This is revised Family Code section 215. Until now applications to change these orders needed to be personally served upon the other party. This created hardship and added expense for many people, since it can be difficult to locate the whereabouts of the other parent in some families months or years after a Judgment for Paternity, Nullity, or Dissolution of Marriage or Domestic Partnership. This often necessitated service by publication if there was no good address - publication in a newspaper can approximate $400, and service is not deemed effective for at least a month after the fourth week of being published. Moreover, an order permitting Service by Publication also needed to be obtained, which itself costs money and time. To this extent the revision is a good thing.

The bad news is that this provision may encourage fraud, which might result in hearings where only one party really knew to be present. Litigants may claim that the papers were mailed when they weren't. Perhaps the person who signs the declaration (grandma) doesn't walk the letter to the mailbox. Perhaps a girlfriend claims she sent the notice but doesn't - how could it be proved? What happens when someone doesn't get the mail on the receiving end, whether because of the letter is lost, by inadvertence, or for having moved? So long as the moving papers contain the required Proof of Service they are presumptively valid and orders will issue even when the responding party fails to show up for the hearing.

Hence, the burden of attacking a modification taken by default shifts to the answering party. For instance if an order is issued by reason of their mistake, inadvertence, or surprise it remains valid until and unless a successful challenge is filed and upheld. These motions are expensive, and judges tend to disfavor them. Here your remedies are (a) filing a motion to quash service, which you won't be able to prove (how does one establish the pleadings weren't mailed?) and/or (b) filing a set aside motion pursuant to Code of Civil Procedure section 473, which generally must occur no later than six months from the date an order is entered. Likewise, while there is no time limit for setting aside orders obtained by extrinsic fraud (i.e., perjury), this is hard to prove. Third, the other party must bear all the initial expense, which can be considerable since these motions are technical and require the help of an attorney. Fourth, anyone responding to a motion is already at a disadvantage. The moving party has whatever time they needed to draft their paperwork, but once this is "served" the respondent must answer within about 15 days of the date of mailing (I will Blog the exact timing separately). Fifth, it is hard to un-ring a bell once a Court has heard from one party.

FC 215 streamlines litigation where people are responsible. It applies only to cases involving minor children. I imagine the public policy includes not feeling too protective of parents who have gone 'walk about.' The greatest likelihood for abuse is with child support modifications.

One thing is for sure: You must keep updated address information on file with the Court for any case involving kids until they turn 18, or 19 if they are still in high school and live with the first parent. If you move and fail to notify the court, and a modification occurs in your absence, you may not be relieved of your carelessness once you finally learn of the new orders!



Thurman W. Arnold, CFLS


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November 21, 2010
  The TIME PERIODS for FILING SET ASIDE MOTIONS DEPENDS....
Posted By Thurman Arnold

Q. Just thought you might want to point out that there is a different code section about setting aside judgments (2122) as opposed to orders (3691). It's important because the statute of limitations is 1 year for judgments and 6 mos. for orders. Thanks for your excellent articles,

Bruce J.
Northern California Attorney


A. I appreciate you for pointing out that some clarification would be helpful (seriously) - most people won't drop me a note - and sometimes I am slow to respond. ; (

Anyway, I am grateful to hear from you.

As you note, there are different statutes of limitations that serve to potentially cut off or extinguish your right to challenge settlement agreements, judgments, or court orders depending on which of these you are challenging and the grounds for the set aside request (i.e., fraud, duress, mistake, etc.) You need to carefully research and understand these rules as they apply to your situation. Mixing up the statutory time periods may result in the denial of your motion, and even subject you to attorney fees for the costs incurred by the other party. I wrote about a recent case in April, 2010, where this occurred entitled Marriage of Zimmerman.

With respect orders for support, for instance, Family Code section 3691 generally sets a six month window on the time to file a set aside of child or spousal support orders.

For settlement agreements and stipulated judgments, Family Code section 2122 sets forth the time limits for filing set aside motions. These time-frames differ depending upon the grounds you allege for the set aside, but generally range from one to two years. Note that grounds for set-aside not only include alleged misconduct of the other party but also your own circumstances that contributed to a mistake or other situation that would tend to make a set aside the fair and just remedy. I recommend that you attempt to justify your motion on every legitimate ground, even if it appears to be time-barred, unless the claims are so unlikely as to appear frivolous.

Look at these statutes carefully. Events that trigger the time to commence running can be tricky and fact specific. This is an area where you need to find competent local counsel, because if you draft the motion yourself you may not recognize that what you thought you needed to say actually undermined or destroyed your claim.

T.W. Arnold

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November 11, 2010
  Is It Possible to Get My Ex's TAX RETURNS Without Any MOTION to MODIFY Pending Between Us?
Posted By Thurman Arnold

Q. We were divorced three years ago and I haven't taken my ex-husband back to Court. I think he is earning a lot more now. Is there anything I can do to find out what his situation is short of actually filing a modification motion?


Absolutely. There is a little known trick for obtaining useful information, possibly with a minimum of trouble, once each year. This is the Request for a completed Income and Expense Declaration (Form FL-150) pursuant to Family Code section 3664.

When there is no motion or OSC pending for a modification, termination, or set aside of earlier support orders you are limited in terms of your discovery rights in California - assuming the proceedings were completed in the sense that nothing is pending or presently calendared (if there is no final judgment in a divorce, partnership dissolution, or paternity action then you are entitled to continue to utilize discovery and what I say here doesn't apply). You cannot, for instance, schedule a deposition or send out interrogatories or even subpoena records, at least not properly. I have seen lawyers send subpoenas when nothing was pending and if I had done nothing they probably would have gotten the information requested since the receiving party doesn't know the status of the case, but when I objected they backed off and canceled the subpoenas at once because it was abuse of process to do what they were attempting.

But in your case you only have the option provided for by FC section 3664. This entitles you to send out on an approved FL-396 Request for Production of An Income and Expense Declaration After Judgment a request no more than once each year (Family Code section 3663) for the other party to produce for you an updated Income and Expense Declaration.

Importantly, the responding party is required to attach to it their last year's federal and state personal income tax returns. (Family Code section 3665).

If they do not respond to you within 35 days, or if there information is incomplete as to wages, you may serve Judicial Council Form Request FL-397 upon their employer per Family Code section 3664(b) and (c). Unfortunately, compliance by the employer is voluntary and so this provision lacks teeth. Yet if you later do file a motion and can show a history of noncompliance by the employer and/or the other party you are more likely to recover attorney fees or sanctions as well as prove that the other party is being evasive or possibly dishonest and this may help you not only to carry your burden of proof and obtain a modification but it may impact how strongly the court acts towards your ex. In the case of family businesses where there is a lack of cooperation it helps the Court to see that you are being stymied.

Section 3664 is also a very useful tool for parties who are trying to modify or terminate support payments that they have been ordered to make. If you are a payor former spouse or domestic partner and want to terminate the other party's support rights, you would begin by sending them the Request. Again, if they fail to cooperate and comply it makes them look like they are hiding something.

Finally, Family Code section 3667 entitles you to recover certain sanctions where the Income and Expense declaration wasn't provided you, was incomplete, or lacked the required tax return attachments. While you cannot recover attorney fees if you don't actually have an attorney (and this section doesn't provide for them anyway), you can recover deposition and related costs, like for subpoenaed records (which can be significant charges), even where you are a self-represented party.

Good luck!



Thurman W. Arnold III,

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September 21, 2010
  How Does DOMESTIC VIOLENCE Affect My SPOUSAL SUPPORT OBLIGATIONS?
Posted By Thurman Arnold

Q. I obtained Domestic Violence retraining orders against my ex, but I earn more money than she does. Can I use those orders as a defense against her request for temporary spousal support from me?


A. Yes, you can - perhaps quite effectively.

It is evident that California Judges and Family Court Commissioners are being trained at judicial college to take seriously the language of Family Code section 4320(i), which is one of the factors that the legislature has declared trial courts must evaluate in entering post-judgment or "permanent" alimony orders. That subsection reads that courts must consider:

"i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party."

Documented evidence includes at a minimum an Order After Hearing issued against a person upon a DV application for conduct described in Section 6211. Obviously it includes criminal arrests and convictions.

The definitions of what constitutes domestic violence in California are set forth in Family Code section 6320. These are interpreted broadly. One of those definitions includes reference to "disturbing the peace of the other party." That definition can include all kinds of objectionable behavior, and really means that if the Judge is offended by the conduct, it is a form of domestic violence. The recent case of IRMO Nadkarni (2009) 173 Cal.App.4th 1483 extended DV protections to breaking into the Wife's email account and then disseminating what the Husband had obtained there. It is also included allegations of physical threats. The trial judge was reversed in his belief that this was not sufficient misconduct. Clearly the legislature and the appellate courts want to send a message that DV must stop - which is a very good thing.

However, I am aware of a case where a husband was living in a casita attached to the family residence, after he moved out of the main house to avoid his wife - who was constantly verbally harassing him. She then changed the locks. He decided to move to a different address entirely, but after he got back into the house (which was community property) without breaking in, he allegedly removed some his belongings and took some items that belonged to both of them, and also reportedly messed up her personal effects. She sought and obtained domestic violence restraining orders, claiming that he had violated her rights by entering what was a jointly owned property, and that this caused her fear. It is possible that she seized upon his entry as a tool to avoid paying him spousal support.

After the judge entered her restraining orders, the husband's motion for spousal support was heard. The trial court refused to award him any support, despite his earning $2,000 and her earning $14,000, based upon the DV order and the emotional distress she had supposedly suffered when he removed his belongings.

This can be viewed as an invitation to spouses to abuse their domestic violence protections regardless of gender. Yet, domestic violence is a terrible epidemic that affects women and children most often, and it must be treated with the utmost seriousness. Often men are the instigators, but not always. I don't care whether the perpetrator is a man or a woman - the same rules should apply to both sexes.

Family Code section 4320 is used for long term spousal support awards, but courts are applying 4320(i) even at the temporary support stage to augment or deny spousal support claims. There is some appellate support for that view.

So, you may have a very good defense to paying your ex any spousal support because of the domestic violence orders that you obtained and you should assert it. I hope the courts will be gender blind in enforcing these orders - meaning, I believe it is very important that we apply the same rules to all people, period.




Thurman W. Arnold III

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September 16, 2010
  My Wife is Living With a Male Renter - Does This Affect My SUPPORT OBLIGATION?
Posted By Thurman Arnold

Q. If my wife is living with a male renter, and I suspect they are boyfriend-girlfriend, does this affect the amount of spousal and child support that I have to pay?


A. The supported party's cohabitation with a person of the opposite sex gives rise to a rebuttable presumption affecting the burden of proof of decreased need for spousal support. FC § 4323(a)(1). It has no impact on child support obligations, however.

FC § 4323 states:

(a)(1) Except as otherwise agreed to by the parties in writing, there is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabiting with a person of the opposite sex. Upon a determination that circumstances have changed, the court may modify or terminate the spousal support as provided for in Chapter 6 (commencing with Section 3650) of Part 1.

(2) Holding oneself out to be the husband or wife of the person with whom one is cohabiting is not necessary to constitute cohabitation as the term is used in this subdivision.

(b) The income of a supporting spouse's subsequent spouse or nonmarital partner shall not be considered when determining or modifying spousal support.

(c) Nothing in this section precludes later modification or termination of spousal support on proof of change of circumstances.

As stated in Marriage of Schroeder (1987) 192 Cal.App.3d 1154, 238 Cal.Rptr. 12,

"the policy underlying section 4323 is a legislative acknowledgment that cohabitation may reduce the needs of the supported spouse. The arrangement between Wife and Lara elevates form over substance. By receiving reimbursement by way of 'gifts,' Wife's cash needs for support purposes appear unchanged despite cohabitation. While cohabitants are at liberty to deal with each other as they see fit, their 'contract must be fair and reasonable with respect to the rights of [the] supporting spouse.' The trial court here failed to recognize that the allocation of expenses between Wife and Lara undermines the statute and acts to Husband's detriment.

The record strongly indicates Wife's needs have decreased as a result of cohabitation. We remand to the trial court for a factual determination of the extent of her reduced need, with due consideration for the value of the benefits received by her, as well as the value of the benefits conferred upon Lara."

Schroeder involved a post judgment modification of a permanent support order by the payor, not an initial pendente lite request by the supported spouse. The evidence was the former wife had been living with a man of the opposite sex for 18 months, that he didn't pay rent, that he was regularly employed, that he did not contribute to utilities, but that he did contribute to joint vacations. The appellate court found those facts to strongly suggest a cohabitation. Even then, the issue on remand was not a termination of the support obligation but a determination of the value of the benefits incurred by the former wife which might reduce her needs.

Cohabitation has been loosely defined as not necessarily holding oneself out to be Husband and Wife, but is more than a simple roommate or "boarding arrangement." There must be a showing of a sexual, romantic or at least a "homemaker-companion" relationship. Marriage of Regnery (1989) 214 CA3d 1367, 263 CR 243.

Marriage of Geraci (2006) 144 Cal.App.4th 1278 reversed a trial court failure to consider the effect of an admitted cohabitation lasting several years with the following comments:

The court's judgment also does not take into consideration the evidence Jane had been cohabiting since the parties separated in 2000, despite John's requests for findings on the issue. Section 4323 states "there is a rebuttal presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabiting with a person of the opposite sex. . . . "Cohabitation may reduce the need for spousal support because 'sharing a household gives rise to economies of scale. [Citation.] Also, more importantly, the cohabitant's income may be available to the obligee spouse.' (In re Marriage of Schroeder (1987) 192 Cal.App.3d 1154, 1159 [238 Cal.Rptr. 12].)"[32] "[T]he Legislature created the presumption . . . based on thinking that cohabitation . . . creates a change of circumstance so tied in with the payment of spousal support as to be significant enough by itself to require a re-examination of whether such need for support continues in such a way that it still should be charged to the prior spouse." [Italics added].

* * *

At trial, however, Jane testified she had no intention of marrying him. Jane's father, by contrast, testified he hoped they would soon marry. The evidence showed her boyfriend supplied Jane with housing, with a leased car and a credit card in her name for her use. Jane testified she was supposed to pay him back for all her expenditures, including the equivalent of $1,000 a month for rent, whenever she became financially able to do so. She testified she then owed her boyfriend more than $30,000 in back rent, credit card and other debt. According to Jane's evidence, she contributed to the household by providing domestic services.

The foregoing is substantial and material evidence Jane was cohabiting within the meaning of section 4323 and might have a lesser need for spousal support than the court awarded had it considered this circumstance. However, there is nothing in the record to indicate the court fairly considered Jane's cohabitation when determining the type and amount of spousal support to award her.

In Marriage of Bower (2002) 96 Cal.App.4th 893,117 Cal.Rptr.2d 520 there were two permanent support modification hearings filed by the payor husband, one held in 1997 and the second in 2000. At the 1997 hearing the evidence was that the Wife was sharing expenses and living full time at a residence with a man described as a 'roommate.' The Bower court noted that the Husband had been wise in not appealing that order. However, by the time of the second application over three years later in 2000, there was evidence that she was sharing at least one bank account with her "roommate," and she even stipulated she was cohabiting.

Under those circumstances, together with evidence of an increased income from her employment, it was not an abuse of discretion to reduce the Wife's spousal support and then terminate it at the end of one year.

Bower and those cases cited herein regarding cohabitation are dealing with modifications of Permanent Spousal Support orders. They all are based upon the "two can live more cheaply than one" theory or upon actual expenses of the supported party being regularly paid for by the cohabitant beyond loans and gifts. There is no reported case that upholds a trial court refusal to provide spousal support at the temporary hearing stage. However, I suspect most courts will apply the presumption there as well.

The philosophy underlying the cohabitation statute is that parties who share a household and live in a meretricious relationship should not benefit by continuing to receive spousal support without consideration of the reduced need this sharing produces.

Finding cohabitation just allows for the aid of a statutory presumption to assist in the presentation of factual evidence. The effect is the same without the presumption even for mere roommates, as those contributions to the obligee's living expenses may also support a factual finding sufficient to modify spousal support since rent is income.

Nonetheless, cohabitation is offensive to some judges and they be willing to terminate the spousal support obligation instead of merely reducing it.

Note that once you prove a cohabitation the burden of proof shifts to the supported party to show that they still need support. That is their problem, not yours. Nonetheless, if you can show a substantial reduction or the end of any need for alimony you would be well advised to present that evidence.

Finally, you are not entitled to know the income of the other party as new-mate income cannot be considered by the Courts.

For domestic partnerships, even though the statute speaks in terms of opposite sex couples it is highly unlikely that a trial court would not reduce or terminate partner support with a same-sex couple where male former partner is cohabiting with a male and so on. Since 2005 the California Family Code is to be interpreted as applying equally to same sex couples who are in a legally recognized relationship.

If a gay man (as opposed to bi-sexual male) is now living with a female should the opposite sex presumption be applied? The answer would seem to turn on whether the relationship is romantic and/or intimate and not on the identity of genders. Similarly, if a former wife is now living with a female roommate and it can be established that relationship is intimate, then the same reasoning as in the above cases will likely apply. We await appellate court pronouncements on these interesting questions.

[Note, four years later, in July, 2014, Family Code section 4323 was amended to strike the "person of the opposite sex" language and replacing with the phrase "nonmarital partners." - TWA]

Thurman W. Arnold III
September 16, 2010

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September 14, 2010
  How do CALIFORNIA COURTS divide EDUCATION LOANS?
Posted By Thurman Arnold

Q. My husband completed his training as a doctor after we married. He incurred substantial educational loans which we paid off during the marriage. What rights to I have for recovering those costs?


The community estate is supposed to be reimbursed for community contributions to education or trainingof a spouse that substantially enhances that person's earning capacity. The amount reimbursed must include interest at the legal rate, accruing from the end of the calendar year in which the contributions were made. FC section 2641(b)(1); see FC section 2627.

Reimbursement is not appropriate in the following circumstances:

  • The parties expressly agreed in writing to the contrary [[FC section 2641(e)]; or
  • The contributions were for ordinary living expenses that would be incurred regardless of whether the spouse attended school, stayed home, or worked [Marriage of Watt (1989) 214 CA3d 340, 354].

If the loan is still outstanding at the time of dissolution, the balance is not divided but is instead assigned to the party who was educated or trained, except when the parties expressly agreed in writing to the contrary. FC section 2641(b)(2)(e).

Nonetheless, the Court may reduce or modify the reimbursement and assignment of educational loans to the extent circumstances render such a disposition unjust, including the following [FC section 2641(c)]:

  • When the community substantially benefited from the education, training, or loan incurred for the education or training of the party. There is a rebuttable presumption affecting the burden of proof that the community has not substantially benefited from community contributions to the education or training made fewer than 10 years before the commencement of the proceeding. On the other hand, it is presumed that the community substantially benefited from community contributions to the education or training made more than 10 years before the commencement of the proceeding.
  • The education or training received by the party is offset by the education or training received by the other party for which community contributions have been made.
  • The education or training enables the party receiving the education or training to engage in gainful employment that substantially reduces the need of the party for support that would otherwise be required.

Professional licenses and education are not "property" that can be divided in divorce or legal separation in California. Reimbursement for community contributions and assignment of loans under FC section 2641 is the exclusive remedy of the community or a party for education or training costs and any resulting enhancement of a person's earning capacity.

However, importantly, the Court should consider the effect of the education, training, or enhancement, or the amount reimbursed, on the circumstances of the parties in ordering permanent spousal support pursuant to Family Code section 4320(b). [FC §2641(d).]

Author: T.W. Arnold


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June 11, 2010
  What should I know if I want to LIMIT or TERMINATE SPOUSAL SUPPORT in the future?
Posted By Thurman Arnold

Q. My wife and I were married for 14 years. We have two children, aged 11 and 13. We are 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. 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?


How Terminate Spousal Support?

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, assuming your relative income circumstances do not change.

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 unforeseen 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 point in 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!

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Thurman Arnold III


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June 11, 2010
  What is a GAVRON WARNING and how does it affect my right to SPOUSAL SUPPORT?
Posted By Thurman Arnold

Q. I was at our first court hearing last week requesting child and spousal support. My husband's attorney asked the judge to give me a "Gavron Warning". The judge said he would consider at a future hearing, but I don't understand what this meant. The judge did order my husband to pay child and spousal support. What do I do if this comes up again?


What Are Gavron Warnings?

Gavron warnings deal with the question of when a supported spouse may be expected to become partially or totally self-sufficient, so that they can no longer be expected to rely on a former spouse for economic support. At some point the entitlement to be supported usually ends.

Where the court intends that party to become self-supporting by a given date, it generally must first give that person advance warning. Marriage of Gavron (1988) 203 Cal.App.3d 705 is the case which first articulated this policy. This advance notice is now called the Gavron Warning. It does not impact child support.

This represents a trend in the law away from a rule which once entitled a spouse (typically women) to lifelong alimony to a right to receive spousal support for only so long as necessary to become self-supporting. It applies equally to men and women, and to domestic partners. There is no question that this trend has gained legislative acceptance, and in 2000 Family Code section 4330 was enacted. It provides in part:

"(b) When making an order for spousal support, the court may advise the recipient of support that he or she should make reasonable efforts to assist in providing for his or her support needs, taking into account the particular circumstances considered by the court pursuant to Section 4320, unless, in the case of a marriage of long duration as provided for in Section 4336, the court decides this warning is inadvisable."

Note that this statute states the court "may advise" the support recipient to make reasonable efforts to assist in supporting themselves. This means it is up to a judge to decide at any given stage in any given case when and whether or not to give the warning. One of the factors that the court must consider is the length of the marriage.


Gavron Warnings in Long Term Marriages

Family Code section 4336 defines a marriage of long duration as 10 years or more. There are cases that have decided that this 10 year rule is not inflexible, and that marriages of less than ten years may qualify for this protection where the facts warrant it (i.e., disability, domestic violence, the parties' respective ages).

The effect of the Gavron decision is to require that fair advance notice in fact be given before a court can properly terminate or reduce spousal support as of a specified future date. The idea is that a supported spouse should not be punished for failing to meet the court's unrevealed expectation that they would become self-sufficient - absent this required advance notice it is judicial error to abruptly terminate an alimony order because of a failure to make good faith efforts to become self-supporting.

However, that notice need not be express - although it usually is. For instance, your husband's attorney was competently (but aggressively) representing your husband by asking the court early on to give you an express warning. He or she will probably ask again at every future hearing until the judge finally does give you the Gavron admonition. That warning need not be in any magic formula: It merely needs to clearly tell the supported spouse that they are expected to become self-supporting. The classic language is contained in the FL-180 Judgment of Annulment, Legal Separation or Dissolution form and reads: "It is the goal of this state that each party will make reasonable good faith efforts to become self supporting as provided for in Family Code section 4320. The failure to make reasonable good faith efforts maybe one of the factors considered by the court as a basis for modifying or terminating spousal or partner support."


How About Gavron Admonitions in Short Marriages?

Except in short marriages of less than 10 years, most judges will not issue Gavron warnings early on because during the early divorce process it is not reasonable that suddenly a homemaker should become self-supporting. At the time a Judgment of Dissolution or Legal Separation is entered, however, and possibly except in cases of very lengthy marriages lasting 20 years or more (or where the parties are too old to be expected to retrain), most judges will give the Gavron Warning.

Additionally, Gavron language is often found in Marital Termination Agreements (also known as MSA's for 'marital settlement agreements'). Whether the language is included in the settlement agreements is a matter of negotiation between the parties. As a recipient you want to resist it. As a payor spouse, you want to insist upon it. The longer the marriage, the less reasonable it is to include such language. For instance, when I represent women over the age of 50 with marriages in excess of 10-15 years, I counsel my client not to permit it - however, the reality is that by the end of a case, except perhaps in very long marriages, judges are going to give the admonition. On the other hand, if I am representing the high earner spouse, I always argue for its inclusion. This is one of those subtle areas where having the right attorney for you can make a huge difference in your future security. However, as you may have noted above the language has become so standard now that it is included in the FL-180 Judgment form and be used for or against you even if you never read that piece of paper (one you don't sign).

In answer to your question what to do when this comes up again, urge the court that this is too soon and too early, and not reasonable given that you have devoted your married life to child-rearing and to helping your client develop the career that you both once believed would support the family until retirement and ultimately death.

This is just an overview of the Gavron admonition. Visit us here for more information.

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Author: T.W. Arnold III


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May 26, 2010
  What is FAMILY SUPPORT?
Posted By Thurman Arnold

Q. My lawyer mentioned something called "family support" as a way to possibly get more money from my ex-husband for child and spousal support. What exactly is family support and does it work?


A. Family Support is mentioned in two California Family Statutes - section 92 and section 4066.

In theory family support allows parties, by agreement, to characterize both child support and spousal support together. The spousal and child support components are unallocated, and the total sum is a combined number.

The purpose of family support is to create a deductibility for child support for federal and state income tax purposes that otherwise does not exist. One hundred percent of family support is potentially deductible by the payee and must be picked up as taxable income by the recipient. However, as mentioned at the bottom of this blog, there is some uncertainty whether the IRS will in fact allow this deduction.

While this may seem to be a bad deal for the supported spouse, this is not at all true in certain circumstances. If the supported spouse has no other taxable income, depending upon what the family support number is that person may pay little or no taxes on the combined sum while the payor obtains the benefits of total deductibility. If there are little adverse tax consequences to the party receiving family support but the party paying is substantially better off net after taxes, then family support is something divorcing spouses might want to horse-trade. Since the payor is receiving a benefit, they may well be willing to pay to the supported spouse a higher combined family support award than they would if it was broken down into deductible spousal support and non-deductible child support.

In this way, more money becomes available for both families - and particularly for children - and less money goes to the government.

One caveat - family support is clearly deductible for purposes of the California State Taxes. However, at least one federal tax court decision has invalidated a family support order in terms of its deductibility (Wells v. Commissioner). In that case mistakes were made in the drafting of the family support provision in that it was not stated that support would terminate upon the death of the payee (a requirement for deductible spousal support) and, more important, the cessation of payments was contingent upon events which were associated with the parties' children (i.e., turning 18 or graduating high school) - another major no-no for securing deductible alimony. I have separately blogged deductibility of spousal support.

In order for family support to be deductable for IRS purposes (IRC section 71), it needs to not be disguised child support. This means its payment or continuing existence cannot be tied to any child related event - it will be disallowed if the Judgment or other support instrument links it cessation or modification to the children becoming majors, or dying, for instance. With careful drafting, you can achieve something that likely will past IRS muster but you'd be well advised to not write these provisions yourself unless you are an experienced family law/tax attorney!

Hence, before agreeing to family support (particularly if you are the payor, since if you are the payee you may find you actually had no tax liability after all and so the recipient may not be hurt while the payor is) you need to ask your lawyer or a tax accountant for their opinion on the current deductibility of family support, and you need to be sure the agreement is carefully drafted - including a provision that allows the parties some remedy if, for instance, the recipient fails to report the family support as income or if the deduction comes to be disallowed.

Since family support is a dicey proposition, it probably should not be considered until the IRS has given clearer directions that protect you.

What more information about taxable spousal support?

Thurman W. Arnold


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May 20, 2010
  What are the TAX CONSEQUENCES of CHILD SUPPORT and SPOUSAL SUPPORT?
Posted By Thurman Arnold

Q. My husband and I have separated, and pretty much agreed to work everything out without going to Court. But I would like some information about how any support we agree upon is taxed.


Child support is not taxable to the recipient, nor is it deductible by the payor, unless a court order or agreement specifies that child and spouse support will be paid together as Family Support.

Spousal support, or "alimony" as it is known in some states, is taxable to the recipient and deductible to the payor as long as certain Internal Revenue Code requirements are met. It is important that you obtain a professional explanation and review of these requirements in terms of what you write up in the settlement agreement (the agreement should be filed with the Court), because in some situations people have the highly unpleasant surprise of believing their support agreement passes muster only to find years later that it violated one of the provisions of the IRC - if that happens, the paying spouse may be forced to recapture the deductions in such a way that they are denied by the IRS, which now means not only that the payor owes monies for increased taxes, but they also owe substantial penalties.

To be deductible spousal support must meet the requirements of IRC section 71. These were established by the Domestic Relations Tax Reform Act of 1984, also known as DRTRA (pronounced "durtra"). The general requirements are that the spousal support obligation must be set forth in a written instrument (i.e., a Marital Termination Agreement), the payments must terminate at death, the payments must be in cash (and not as a swap of property, although it is possible to structure a property settlement in periodic payments of spousal support if done properly), and the parties must reside in separate households.

A common mistake includes "front-loading" or concentrating spousal support in the period immediately after divorce. Spousal support awards that decrease by no more than $10,000 per consecutive years are usually safe, but if you are contemplating a progressive decrease in spousal support over some years, you must have this agreement examined by a qualified professional in order to assure you are protected - this could be an accountant.

A common inadvertent mistake is to terminate spousal support on a date coinciding with a child's age of majority (turning 18). The IRS views this as an attempt to classify or hide what is really child support as deductible spousal support, and when this occurs the IRS may declare these payments that you believed were alimony for tax purposes all to have been child support - regardless of your true intentions - and so disallow the deductions from the time of the agreement forward. This will mean that the receiving spousal who has declared them as income may then be entitled to file an amended return to recover the taxes he or she paid. (Incidentally, the way this problem is often brought to the IRS's attention is where the recipient spouse doesn't declare the income, but you declare the deduction). There should be at least a six month differential between the timing of the termination of spousal support and a child's 18th birthday.

These issues can create a real shock, and totally undermine parties' expectations. Please have your settlement agreement reviewed by a competent attorney, and seek advice beyond the scope of this Blog in order to safeguard your interests!

For more information about tax issues in divorce, click here!

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Thurman W. Arnold III


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April 25, 2010
  Are SOCIAL SECURITY benefits income for purposes of SUPPORT calculations?
Posted By Thurman Arnold
Q. Are my social security benefits includible as income to me for purposes of my spousal support and child support application?


Pursuant to California Family Code section 4058 gross income for purposes of child support "means income from whatever source derived". Subsection (1) specifically identifies social security benefits as included.

While FC section 4058 is a child support statute, there is no companion definition of income for temporary spousal support and as a result section 4058 is generally applied to that context as well.

The question often arises whether Social Security is inputted into the support calculation as a taxable or nontaxable benefit - federal taxes are imposed on some of Social Security benefits, depending upon on combined income (the sum of adjusted gross income plus nontaxable interest plus one-half of Social Security benefits). The bottom line is that ask the Court to include it within "other taxable income" to avoid paying both taxes on the income and higher child or spousal support!

Have more questions about how divorce impacts Social Security?

Thurman W. Arnold III


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March 24, 2010
  I am remarried. How does my NEW MATE'S INCOME affect my SPOUSAL SUPPORT or CHILD SUPPORT OBLIGATION?
Posted By Thurman Arnold

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. 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 are our rights?

Peter, Sacramento, CA


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.

New-Mate Income Generally Cannot Be Considered In Setting Child or Spousal Support

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).


What About Tax Returns?

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.

For more articles about the ins and outs of new mate income, visit us here!

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.

Be safe out there!

Thurman Arnold


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March 06, 2010
  Is a WAIVER OF SPOUSAL SUPPORT in a PRENUP VALID?
Posted By Thurman Arnold

Q. Before I married we signed a prenup that says I waived any right to spousal support. Is this valid?

Clarissa, Carmel, CA


Maybe yes, maybe no. Sections 1612 and 1615 of the California Family Code impose important limitations on spousal support waivers effective 1/1/02.

Spousal support waivers absolutely require that the party waiving the right was represented by independent legal counsel at the time the agreement was entered into. Family Code section 1612(c). If a lawyer has not advised the party and signed off on the agreement, the waiver is unenforceable.

Even if a party was in indeed represented by independent counsel who advised the client and approved the prenup, the spousal support waiver will not operate "if the provision regarding spousal support is unconscionable at the time of enforcement." Family Code section 1612(c). Time of enforcement means when a party attempts to force the other party to adhere to the terms of the agreement, or is resisting a support request in divorce court.

Creative attorneys anticipate these potential bars to enforcement by carefully drafting the language of the prenuptial agreement, and by creating various scenarios within the support waiver. For instance, a straight waiver of spousal support is much less likely to be enforced than a conditional waiver of support. A conditional waiver might contain language that precludes the waiver if the party seeking support is gravely ill, unable to work, or receiving welfare benefits.

Lawyers drafting premarital agreements tend to charge moderate minimum fees because of the potential attorney malpractice exposure years down the road. Many attorneys won't handle them at all, or refuse to recommend that a party ever waive support and so they will not execute the agreement.

There are a number of other restrictions which must be overcome before a premarital agreement can be enforced. One is that at least seven calendar days must have passed between the date that a party was first presented with the agreement and then later signed it.

While you may be able to accomplish what both parties say they want are are willing to do before marriage in a prenup, you must retain legal counsel who is experienced in this area of the law or things may turn out differently than you expect down the road.

Once a wedding date is set, the earlier you get the agreement negotiated and signed the greater the likelihood it will survive objection or attack later.

If you already signed one and want to know whether it will be enforced for or against you, seek a family law expert immediately.

To read more about spousal support waivers in premarital agreements, read here!

TWA


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January 24, 2010
  Can CHILD SUPPORT ORDERS be made RETROACTIVE?
Posted By Thurman Arnold

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.

Author: TW Arnold

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December 28, 2009
  What is permanent SPOUSAL SUPPORT in California?
Posted By Thurman Arnold

Q. What rights do I have to permanent spousal support? I live in Palm Desert, CA.

Suzanne


A. Permanent spousal support is not usually "permanent," although it can be in cases of very long marriages where the respective financial circumstances of the parties justify it. 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 may need an experienced support attorney - even if the support numbers are presently a matter of agreement between you and your (former) spouse.

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 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 downstream 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 (Richmond Orders), and ultimately a termination date.

Second, Family Code section 4320 is the critical California spousal support statute. 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 parties.
  • 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!

Author: Thurman Arnold

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August 29, 2009
  Is OVERTIME considered in fixing CHILD SUPPORT?
Posted By Thurman Arnold

Q. Is overtime a factor in considering child support?

Ted, in Fontana

Yes, if there is already a history of overtime - meaning a court won't order a parent to work overtime who hasn't been earning overtime (there is case authority that a court cannot order a parent to work more than a regular work regimen), but if they have already been working it, then the court must take that history into account when projecting future income for purposes of guideline support (Xspouse or Dissomaster, depending which California county you are in).

The black letter rule is that overtime earnings must ordinarily be include in the parent's gross income. County of Placer v. Andrade (1997) 55 Cal.App.4th 1393. These earnings may be excluded if:

  • There is evidence that it is unlikely it overtime income will continue as, for instance, where there has been a change in employment conditions or possibly if the parent is no longer willing to accept voluntary overtime;
  • Imputing overtime in the calculation would force a parent to work an "excessively onerous work schedule". Marriage of Simpson (1992) 4 Cal.4th 225, 228, 234-235.

When a parent ceases to work overtime, requires the parent's income to be tied to an "objectively reasonable work regimen." This is defined by "established employment norms." Much may depend upon the parent's occupation, since many people work more than 40 hours per week.

Note that when a parent takes a second job to make up for the impact of support payments, that income must also be factored in. If it is earned, it must be included. Some courts may impute overtime if a parent thereafter stops working it, as long as the work regimen is not excessive.

Please see this Blog article about temporary support. These principles apply equally to spousal support. Andrade is a child support case against a county collection agency. Simpson involved a determination of both child and spousal support. In that case the trial court had found that the father's shift in work was motivated primarily by his desire to shirk his family obligations. One of the things that compelled this finding was the timing of dad's change of employment - immediately after the court's initial support awards, surprise! It was therefore a simple matter to imply an earning capacity equal to what he was doing before the divorce, and before he switched jobs.

For more articles about overtime and support, click here!

Author: Thurman W. Arnold, III


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