Going through a family law case is agonizing emotionally, taxing financially, complicated, confusing, and expensive, regardless of whether you and your spouse are getting along or at each other's throats, whether you have an attorney (or attorneys) or not, how much education you have, or how much money or how many children you have. It also can be difficult to get accurate and clear information, as it seems everyone has their own agenda in offering you their opinion. Your friends give you advice based on their experience, and each family law case is so different that it can be difficult if not dangerous to generalize. Attorneys give you information designed to convince you that you need their services (and to pay them lots of money). The media gives you information about celebrities with endless amounts of money. The internet gives you so much information that it's impossible to determine what's accurate.
This guide is designed to help you ensure that your support order is accurate and includes everything that works in YOUR favor. I believe that it is not always necessary to hire an attorney at exorbitant cost to complete your family law case successfully. This guide can be your starting place for saving as much as possible during your family law case. You CAN do it yourself, and I can help.
If you need more assistance than this guide, I can also help with hourly coaching. With just an hour or two of coaching, I can guide you through the maze of forms, documents, requirements, expectations, and knowledge required to emerge from your family law filing, hearing, judgment or trial with success. My fees are a small fraction of the cost of hiring an attorney, most often 5% or less of this cost. In today's economy, having the backing and experience of an experienced family law litigator on your side at the cost of an attorney consultation can be the difference between winning your case or losing everything.
This is a guide that you can use when examining the computer print-out of your child and spousal support. It assumes that you know how to read the items in each column and understand them. If you do not, please consult with a Family Law Coach or qualified attorney to assist you.
If you find, using this guide, that you are paying or receiving an inappropriate amount of child or spousal support, then you should immediately file an Order to Show Cause (OSC) to modify your support. Any modification will only date back to the date you filed your motion, regardless of how long the support calculation was incorrect. Keep in mind, however, that your attempts could backfire. If you do not calculate properly, your support may not change in the direction you are hoping. This is the risk you take when you try to modify your support.
One note on arguments that will not work to modify your support: The bottom line is that once you agree on what numbers are entered into the computer program (or the judge makes a determination if there's a dispute on the amount), then the amount of child and spousal support that the computer displays will be your support order. Support in California is very expensive, and arguing to the judge that you can't pay it, or you can't live on the amount, or it's not fair will only antagonize the judge, which you do not want to do (The Family Law Coach's article, The Top 25 Things You Must Know Before Going to Your Court Hearing, can help you to act appropriately in court).
Look at your child support order. Evaluate the timeshare percentage. Is it accurate? Try calculating the timeshare with hours instead of days - it will be more accurate.
Do you have more than one child? Do you have parenting time with them at different times or see one more than the other? You can adjust the timeshare to reflect the actual time with each child.
What is your tax filing status and your co-parent's? Check to make sure this is accurate on your computer printout.
Do you or your co-parent pay a mortgage? If so, then the mortgage interest should go into the mortgage interest column, as well as your property taxes should go into the property tax column. You should have the exact amount of interest that you pay, but a common default percent is 90% of your total mortgage payment.
Do you have other children in the house that are not your co-parent's? If so, you may be able to get what's called a "hardship" deduction, which accounts for the expenses your other child has.
Are you splitting child care costs? Child care costs are what's commonly known as an "add on" and are almost always divided equally between the parents.
What is your income and what is your co-parent's income? Verify that the amounts are correct. Keep in mind that, if you are paid bi-weekly (every other week), then to calculate your monthly income, you take the bi-weekly amount and multiply it by 26 (because you get 26 paychecks in a 52 week year). Take that figure and divide it by 12 (months) to get your monthly gross income. Your gross income goes into the calculation because the computer program calculates your taxes.
Do you live in a state other than California? You can customize your taxes to reflect what you actually pay in your state.
If you or your co-parent receive other income, such as rental income, social security or interest income, that should be included in the calculation.
Non-taxable income such as worker's compensation, disability and non-taxable social security also should go into the calculation.
Note that you or your co-parent's new mate income is not included in the calculations because he or she will be helping to pay your support. It is included because the computer program calculates your taxes, and to do that, it needs your household income.
Any health insurance premium that you pay needs to be included in the calculations, including payments for dental and vision coverage.
Contributions to a mandatory retirement account need to be included.
There is a category for "necessary job-related expenses." You can often get deductions here for uniform expenses, sometimes for gas, car payments, and bridge tolls, for work-related cell phones, and other expenses mandated by your employment.
If your spouse or new mate also pays support, this should be included.
Make sure any union dues that you pay are included.
How long have you been paying support? If you are paying child support, then child support ends when your child graduates from high school or reaches age 19, whichever is first. If your child's 19th birthday is approaching, then you should file an Order to Show Cause to terminate support, and file it early enough so that it may be heard prior to the relevant graduation or birthday. Since child support should terminate automatically at that time without the need for you to file a motion, your Order to Show Cause should include a request for your co-parent to pay any attorney fees and costs associated with the motion.
As a general rule in California, spousal support lasts for approximately half the length of your marriage. If you were married, therefore, for eight years, then after about four years the support should terminate. You should file an Order to Show Cause with the court to be heard on your request to terminate spousal support. Your Order to Show Cause should include how your ex-spouse has become self-sufficient by getting a job, or other reasons why support should be terminated.
If your marriage lasted longer than ten years, it is probably going to be considered a "long-term marriage" by the court. This means that spousal support can go on indefinitely. In recent years, however, courts have been less willing to allow spousal support to continue forever, so if you have paid for half the length of the marriage, you should at least try to terminate the support.
Pursuant to the California Family Code, the non-earning or lower-earning spouse has the obligation to become self-supporting as soon as reasonably possible, even if that spouse has spent many years raising children. You can ask the judge (in your Order to Show Cause or even just in your support hearing) to make an order that the lower-earning spouse seek work or make efforts to become employed. This applies to child and spousal support. The orders the court will make vary, but in the extreme case, the court can require the job seeker to submit documentation that he or she is applying to up to ten jobs per week and following up on the applications. Support can ultimately be reduced if the job seeker fails to comply with the court's orders for a job search.
In addition to a seek work order, you can request that the court order a vocational evaluation, which is an evaluation by an expert to determine how much your ex-spouse may be able to earn and what would be appropriate fields of employment. This can be expensive, but effective in convincing the court that your ex-spouse is capable of working.
If you can convince the court that your ex-spouse should be working, should be working more, and/or should be earning more, then you can ask the court to impute income to him or her. Your support order in this case will be calculated as if your ex-spouse/co-parent were earning to their potential.
If you and your co-parent have agreed to an amount of child or spousal support that was not calculated using the state-mandated computer program, either of you may return to court to request a modification of the order to "guideline," regardless of whether the support amount is above or below it.
Generally, long-term spousal support is less than temporary support. During your divorce action, the lower-earning spouse needs more money. Presumably, he or she is seeking to become fully employed to his or her potential, and by the time the divorce is completed, has had enough time to do so. At or toward the end of your divorce case, you can petition the court to set an amount of "permanent" support, which will be the support order moving forward until the termination date (or indefinitely if you have a long term marriage). Permanent support is not modifiable until and unless there have been a change in circumstances of one of the parties. A change in circumstances in this case would include obtaining a new job or losing a job (of either party) or if the recipient spouse gets married or moves in with a significant other.
If the recipient spouse moves in with a significant other, it would be advisable for the paying spouse to file an Order to Show Cause to reduce or eliminate spousal support. You still have to prove that the significant other is paying some or all of the recipient spouse's bills (and you must also prove that it is a romantic relationship and not a roommate situation, though a roommate situation presumes the sharing of expenses), but the addition of someone else in the house can reduce an obligation of spousal support.
You may be able to show that your co-parent's child care expenses are exorbitant if you can show that there are other, similarly-run organizations that are less expensive.
If you have a support payor who, during your relationship regularly received overtime pay but, now that you are asking for support has stopped getting overtime, you can ask the court to look at the past 12 months of pay of the payor to determine an average based on the 12 months instead of the most recent two or three months.
If your child support payor is self-employed, you may ask (at a cost) the court to appoint a forensic accountant to review the business books to make a determination of the income of the business.
To file for divorce, one spouse must have lived in California for the last six months, and the county where the action is filed for the last three months. Spouses who have lived in California for at least six months, but in different counties for at least three months can file in either county. These California residency requirements must be met in order for the court to have jurisdiction of the case.
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"A Plain English Guide to Protecting Your Children"
Mary L. Boland, Attorney at Law
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