Recently in Divorce and Remarriage Category

The Second Wives Club Calls for Spousal Support Reform

June 19, 2013

Woman on beach - San DiegoSpousal support is an aspect of family law that divorce attorneys frequently answer questions about. In states such as Massachusetts and Florida, second wives are lobbying for spousal support legislation reform regarding "permanent" spousal support (commonly referred to as "alimony"). To clarify, in California, "permanent" spousal support is not a guarantee of a lifetime of support. However, it is only a spousal support award made at the conclusion of a divorce case. In contrast, "temporary" (or pendente lite) support is a spousal support award made during the pendency of the proceedings.

Because of the extremely broad and generous spousal support statutes, many second wives are reaching into their own pockets to contribute to the support of their husband's first wife. The second wives argue that they too have been sentenced to a lifetime of spousal support payments which hinder their ability to plan for retirement, prevent them from assisting their children and grandchildren financially, and generally reduce their overall standard of living.

In many states, the family code and court rulings permit the Court to consider the income or assets of a second spouse where the income of such spouse contributes to the support of the household, giving the paying spouse more of his own income with which to satisfy spousal support obligations. Under California Family Code § 4323, family courts are prohibited from considering the income of the supporting spouse's subsequent spouse when determining or modifying spousal support. Despite this blanket prohibition, cases which held that a new spouse's income may be considered to the extent that the income reduces the paying spouse's living expenses (and thus increased the ability to pay) may still be viable. It seems even California has a giant loophole which grants Courts discretion to consider income of new spouses when considering a divorce attorney's request for spousal support determinations or modifications for their client.

With second wives demanding reform, legislators are in a difficult position as they will be balancing the interest of the first wife and her right to support against public policies such as a supported spouse's obligation to become self supporting and the supporting spouse's right to move forward after divorce. The Second Wives Club has a few suggestions which it feels fairly addresses the rights of all parties.

Family Law Reform - US CapitalThe reformers are pushing for durational spousal support awards which are sufficient to permit the supported spouse to gain the education, training, or experience necessary to become self-supporting. The duration of the spousal support will be contingent on the length of the marriage, the age of the supported spouse and the supported spouse's ability to become employed. Upon the date set for payments to end, the supporting spouse's obligation to pay spousal support will end regardless of whether supported spouse has become gainfully employed. Although the Second Wives Club is lobbying strong in various states, divorce attorneys feel that California will likely not experience significant reform in this area any time soon.

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Ex-spouse's Remarriage Usually Doesn't Impact Child Support Obligation

May 23, 2013

support modification after remarriageIs it possible to go after my ex-husband's new wife's income in order to increase his child support obligation? This question probably comes across a divorcée's mind more often than not. Unfortunately, if your ex-husband remarries, you will most likely be unsuccessful in pursuing his new wife's income as family law courts have proven to be quite reluctant to include a new spouse's income for purposes of calculating child support. The court's logic behind this is that the payment of child support should be the parent's obligation rather than that of the new spouse.


Prior to 1994, courts had authority and discretion to consider a subsequent spouse's income when setting a child support award. However, as San Diego divorce attorneys know, when an ex-spouse remarries, child support adjustments are now governed by Family Code Section 4057.5. This statute prohibits courts from considering a subsequent spouse's income unless the exclusion of the subsequent spouse's income would cause the child to suffer extreme and severe hardship. In other words, if you are the parent seeking to modify the child support order after your ex-husband has remarried, then you should attempt to prove that the child would suffer an extreme and severe hardship if the earnings of your ex-husband's new wife were excluded in considering an award for child support. Thus, courts look exclusively to the needs of the child.

remarriage effecting support modificationPursuant to Family Code Section 4057.5 (b), an extraordinary situation that might constitute an "extreme and severe hardship" is where the ex-spouse voluntarily or intentionally quits working or intentionally remains unemployed or underemployed and relies on his subsequent spouse's income. Such a situation would warrant consideration of all of the community property of ex-husband and his subsequent spouse in modifying the ex-husband's child support obligation.

Read more about child and spousal support

As an aside, seeking to modify child support by attempting to include the subsequent spouse's income, might in fact backfire and actually reduce the child support award instead. For instance, if your ex-husband remarries and his new wife makes a considerable amount of money, then he will likely be in a higher tax bracket (if married filing jointly), thereby reducing the amount of his disposable income. In turn, this will then likely reduce the amount of child support that your ex-husband has to pay. However, it is likely that such a decrease would only be a minimal amount each month, depending on how much his subsequent spouse makes. Nevertheless, the subsequent spouse's income certainly won't increase your husband's child support obligation unless the "extreme and severe hardship" exception is met.

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Divorce & Remarriage in San Diego - Considerations for the Blended Family

May 7, 2013
Considerations for Your Second Marriage and New Blended Family

Blended Family Remarriage After Divorce.jpgThe United States, especially California, has a bad reputation for its "high" divorce rate. However, along with the high rate of divorce is also a high rate of remarriage. Considering the amount of marriages and remarriages, it is not surprising to family law attorneys that 65% of remarriages involve blended families. "Blended family" is the term used by divorce attorneys to describe families including children from a previous marriage of one or both spouses. Blended families will face some unique challenges. With proper planning and awareness, individuals who intend to remarry after divorce in Del Mar can give their marriage a better chance.

Finance

One of the issues that can arise when two families come together after experiencing divorce is finance. Each family may be accustomed to a particular lifestyle that will have to change when the two families combine. Financial planners and family law attorneys recommend that blended families keep three separate bank accounts if both spouses earn income.

If this approach is followed, each spouse maintains his or her own bank account in which his or her income is deposited and both spouses share one joint account. Each month both spouses deposit a percentage of their income or a fixed amount into the joint account from which all household bills and expenses are paid. Using this method, the blended family can avoid conflict and resentment regarding how much money the spouses spend on their own children. Additionally, maintaining separate accounts can protect both spouses from the other's debts including child support and spousal support obligations from a prior marriage.

Read more about divorce and finances from the lawyers at the firm

Real Property

Many times after a divorce, one spouse will continue to live in the marital residence. If both spouses in a blended family own a home from a prior marriage, they will be faced with the emotional and complicated decision of where to live together. All children will likely not want to leave their home after a divorce but neither spouse may feel comfortable living in the home of his or her new spouse's ex. One possible solution is to sell both homes and to purchase a new home together that fits the needs of the blended family. However, both parties should be aware of possible tax consequences of selling their home.

Premarital Agreements

After experiencing a painful and expensive divorce, couples can be a little hesitant to jump into a new marriage to try again. After a divorce, many Del Mar couples opt to sign a premarital agreement (commonly referred to as a "prenup") or a postnuptial agreement (if they are already married) to provide a bit of comfort when entering a new marriage. Formal agreements allow the parties to clarify ownership of assets and protect savings that may have been set aside for the children's future. If new issues arise after the parties have entered into prenup or postnuptial agreement, the parties can consult with an attorney to amend their current agreement or draft a new one.

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Alimony, Child Support, Property Division, a Financial Trifecta in San Diego Divorces

Massachusetts has passed a landmark law regarding alimony payments, The Wall Street Journal reports. The new law aims to end lifetime payments, particularly in retirement or once a former spouse finds a new partner.

Divorcing couples should know and understand the distinct differences between child support and alimony or spousal support in San Diego. Spousal support is generally treated as taxable income for the receiver and as a tax deduction for the payer. Child support is tax free for the recipient but not deductible for the payer. 1064586_time_is_money_2.jpg

Child support may be more collectible than spousal support -- i.e. the court system may be more likely to enforce the court's orders. And, of course, as we reported this summer on our San Diego Divorce Attorneys Blog, cohabitation or remarriage generally does not impact child support payments in San Diego or elsewhere in California. That is not necessarily true of alimony or spousal support.

Spousal support can be awarded on a temporary or permanent basis. Temporary spousal support usually covers the period of time between separation and when a divorce ends. Permanent alimony is typically awarded based on the length of the marriage. A short-term marriage in California, one lasting less than 10 years, may result in an alimony award lasting up to half the length of the marriage. In long-term marriages, judges are given great discretion and payments may be awarded indefinitely.

Together with the initial property awarded to each spouse, the trifecta will go a long way toward determining your future quality of life.

As the Wall Street Journal reported, the recession has brought the contentious issue of long-term alimony to a boiling point. Statistics show unemployment has hit males the hardest. And, as the Baby Boomer generation hits the gates to retirement, many former husbands are looking to reduce or eliminate payments. The Tennessee Supreme Court recently ruled lifetime alimony was inappropriate if a woman was in good health, had a stable job and had received considerable assets during a division of property. And Florida recently set a higher bar for permanent spousal support awards.

The new law in Massachusetts takes effect next March. Those paying lifetime alimony can apply for modifications beginning in 2013. For women counting on these payments in retirement, a reversal could be financially devastating. The New York Times reports the Massachusetts law calls for alimony for up to half the length of a marriage lasting less than five years. For long-term marriages -- those lasting 15 to 20 years -- payments could last for up to 80 percent of the length of the marriage.

Your attorney needs to work toward a divorce agreement that adequately provides in all three areas: property division, spousal support and child support. The pros and cons of each award must be weighed with the client's financial future in mind.

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The Impact of Cohabitation and Remarriage on Child and Spousal Support

After a divorce, one party may decide to cohabit or remarry. As a San Diego divorce attorney, when this occurs, clients (or former clients) ask questions about the impact of cohabitation or remarriage on child support and spousal support.

What is Cohabitation?

Everyone know what remarriage means, but what about cohabitation? Does staying overnight qualify as cohabitation?

Cohabitation is on the rise. California cases have defined cohabitation as more than a sexual encounter or relationship. It requires living together, sharing day to day life, so that where one lives and dwells, the other lives and dwells. Based on case law, having a significant other stay overnight, even several nights per week, probably would not qualify as cohabitation.

The Impact on Child Support when Either Party Cohabits or Remarries

In general, new spouse or non-marital partner income is not considered when calculating guideline child support.

The court may inquire into a new spouse's income for the purpose of seeing how it would impact the remarried party's tax filing status and tax bracket when calculating guideline child support - is the remarried party filing taxes married filing separately or married filing jointly with the new spouse; how many deductions are claimed; and if filing jointly, does the new spouse income push the party into a higher tax bracket? The guideline calculator applies these factors in its calculation, but does not add in the new spouse's income.

There are always exceptions to rules. In "extraordinary cases" the income of the subsequent spouse or non-marital partner could be considered where excluding that income would lead to an extreme and severe hardship the child(ren). Such "extraordinary cases" include when the remarried parent quits work, reduces income, or intentionally remains unemployed or underemployed, and relies on their new spouses income. This means that a party who remarries well (i.e. the new spouse is so rich that they do not have to work), cannot just quit their job and expect to receive guideline child support based on zero or reduced income. The court would either impute income to the remarried party, or consider the new spouse's income.

However, before including some or all of the cohabitee or new spouse income, the court would also have to consider whether including that income would lead to extreme and severe hardship to any child supported by the remarried party, or by either party's subsequent spouse or non-marital partner. This means that the new spouse or cohabite income may not be considered if they have a child or children from a prior relationship, or with the new spouse.

The court makes its decisions on these issues a case-by-case basis.

Impact on Spousal Support when the Paying Party Cohabits or Remarries

The family code prohibits the income of a supporting spouse's subsequent spouse or non-marital partner to be considered when determining or modifying spousal support.

Impact on Spousal Support when the Receiving Party Cohabits

The first place to look is the parties Marital Settlement Agreement to see if there is a provision automatically terminating or reducing spousal support if the receiving party is cohabiting.

Sometimes parties enter into a Marital Settlement agreement that provides for non-modifiable support. In such cases, unless support is specifically terminated or reduced upon cohabitation, then the non-modifiable support provision precludes modification if supported spouse cohabits.

If there is no cohabitation provision regarding spousal support, then the Receiving Party's cohabitation is a change in circumstances triggering the Family Code presumption of decreased need for spousal support. Because this is merely a presumption, the cohabiting spouse can present evidence to prove to the court that he or she has a continued need for support despite the cohabitation. If the cohabitating spouse does not meet this burden, then the court may modify or terminate spousal support.

Impact on Spousal Support when the Receiving Party Remarries

The parties Marital Settlement Agreement controls. If there is a provision automatically terminating spousal support if the receiving party remarries, then the remarriage automatically terminates spousal support.

If there is a provision providing for non-modifiable spousal support despite remarriage, then spousal support continues as set forth in the Marital Settlement Agreement.