Recently in Spousal Support Category

The Supreme Court Interprets "Living Separate and Apart" in Marriage of Davis

Living-separate-under-one-roof.JPGIn Marriage of Davis, the Supreme Court of California was asked to decide the following question: can spouses truly be "living separate and apart" within the meaning of Family Code section 771(a) if they share the same residence? The Court, in a unanimous decision, held that spouses cannot be separated if they share the same residence.

In Davis, the parties seem to agree that their marriage was "over" sometime around June of 2006. However, they continued to reside together, for the sake of their children, until 2011. The wife contended that the date of separation was in 2006, while Husband, relying on the fact that wife did not move out until 2011, argued a date of separation in 2011.

supreme-court.jpgThe Court's decision came down to statutory interpretation. The Court held that, on its face, the plain meaning of the term "living separate and apart" required a physical separation. To the extent there was some ambiguity in the statute, the Court noted that the term "living separate and apart" had not been altered in subsequent iterations of the statute since 1870. The Court also noted that, in 1870, "living separate and apart" required that the wife establish "her own place of residence."

The Court did not address, and therefore did not foreclose the possibility, that spouses could live separate and apart in separate residences while "they continued to literally share one roof." For now, what this means exactly is up to the lower courts, or possibly the legislature.

Determining the date of separation can be critically important in many family law cases. As the community exists only between the date of marriage and the date of separation, it is only after the parties separate that they begin to accumulate separate property. If the parties aren't separated, the spouse will, for instance, continue to have a one-half interest in the other spouse's earnings. Over the course of many years, this can make a difference of tens or even hundreds of thousands of dollars. The date of separation is also important in spousal support, as the duration of spousal support heavily depends upon the length of the marriage.

If you have questions about what the date of separation is in your case, it is important that you discuss your rights with an experienced family law attorney.

Continue reading "The Supreme Court Interprets "Living Separate and Apart" in Marriage of Davis" »

Same-Sex Divorce

same-sex-divorce.jpgIn recent years, same-sex marriage has undergone a radical transformation in California and in the rest of the nation. The Law Offices of Nancy J. Bickford is well aware of these important changes in the law.

On June 16, 2008, the Supreme Court of California held that California's same-sex marriage ban was not permitted under the California constitution. On November 5, 2008, however, the California electorate amended the California constitution through Proposition 8. This reinstated the same-sex marriage ban in California.

On August 4, 2010, United States District Court Chief Judge Vaughn Walker declared that Proposition 8 was unconstitutional under the Federal (not California) constitution. However, through appeal, the order was stayed until the United States Supreme Court reinstated Judge Walker's ruling on technical grounds in Hollingsworth v. Perry. The Hollingsworth v. Perry opinion was issued on June 26, 2013 and allowed same-sex marriages to resume in California.

same-sex-divorce-gavel.jpgOn that same date, the United States Supreme Court issued the landmark Windsor v. United States decision, striking down language in the Defense of Marriage Act (DOMA) that limited the definition of marriage to opposite-sex couples. Before Windsor v. United States, same-sex couples throughout the nation were deprived of many federal benefits opposite sex couples enjoyed. Justice Kennedy, describing some of these benefits, wrote as follows in the majority opinion:

"Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound. It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive... It deprives them of the Bankruptcy Code's special protections for domestic-support obligations ... It forces them to follow a complicated procedure to file their state and federal taxes jointly ... It prohibits them from being buried together in veterans' cemeteries."

After the Windsor decision, same-sex married couples did not face these burdens in California or other states that allowed same-sex marriage. However, it was not until June 26, 2015 that the Supreme Court ruled that all same-sex marriage bans were unconstitutional in Obergefell v. Hodges. This has a practical effect for same-sex couples in California that were already married: they can now freely move to any other state and that state will be required to recognize the marriage. This was an unsettled issue until Obergefell.

There are still unique issues that same-sex couples face. For example, what happens when a same-sex couple had a domestic partnership and then married after it became legal to do so in California? Does this couple have to both terminate the domestic partnership and dissolve the marriage? In cases like this, what is the length of the "marriage" for purposes of spousal support?

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Changing Jobs When There is a Support Order

New-Job-support-orders.jpgIf you're a big fan of the "Simpson's" you may have heard that Harry Shearer, the voice of several of the shows iconic characters, is leaving the show. When a big star makes a movie or a star leaves a television show it usually makes the news, but people retire, change jobs, or are laid off on a daily basis. What do you do if you are involved in a Family Law proceeding and your income changes?

A change in your career can have far reaching effects on many aspects of your Family Law case, but it most immediately applicable to both child and spousal support orders. If there is a current order in place, it should tell you the protocol for informing your spouse of a change in your financial circumstances, but just informing your spouse may not protect you if your ability to pay your support award is compromised. Conversely, if you are receiving support and your ex-spouses income increases you may not be entitled to the increase solely because you are informed of the change.

Even when a change in income occurs, the court can usually only enforce the current order it has on file. Therefore, whether you need to reap the benefit of increased income or reduce the burden of an order you can no longer afford, you need to file the request with the court to modify your support to match your current financial circumstances. The court will then make a ruling in keeping with you and your ex spouse's current financial situation.

Of course financial issues always become complex if one party is self-employed and/or owns a business, and it may require a more in depth analysis. The Law Offices of Nancy J. Bickford is experienced in representing clients in all aspects of any financial issues that come before the Family Court and we are experienced in dealing with the complexity of self-employed parties and business owners.

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Discovery in Family Law Cases

discovery-family-law-divorce.jpgOnce initial papers are filed to get the divorce process started (the petition and response) the next step is typically to gather all pertinent information regarding each spouse's financial and personal information. Although both parties are required to prepare and serve declarations of disclosure, which outline each party's income, expenses, assets and debts, discovery is usually a necessary tactic to gather additional information.

Discovery is vital to the divorce process because it allows both sides to examine exchanged information and documentation before determining how to properly divide up assets and debts. Revelations made during the discovery process are also helpful in calculating the appropriate amount of child support and spousal support.

Discovery can occur informally, formally or both. Informal discovery is when the parties and their attorneys simply request specific information or documentation in an email or letter to the opposing party/opposing counsel. Informal discovery indicates that the parties are willing to work together, but simply need more information to move forward in the case.

Formal discovery, on the other hand, typically indicates that the party is more litigious because formal discovery requires that opposing party and opposing counsel follow rigid procedures and timelines in responding to the discovery requests.

Discovery, whether formal or informal, may include some or all of the following: Interrogatories, Requests for Admission, Document Production and depositions.

  • Interrogatories are written questions from one spouse to the other that must be answered under penalty of perjury. The interrogatories may relate to any issue that is relevant to the divorce proceeding, such as employment information, details regarding financial accounts and information regarding the party's health or living situation.
  • Requests for Admission, although not often utilized in family law, can be helpful when you need a party to admit or deny specific facts regarding divorce related issues.
  • Demand for Production of Documents are particularly helpful when the so called "out-spouse" does not have access to financial statements, documentation relating to a spouse's business, tax documents, etc. It also is a way to get important information that a spouse may be trying to hide.
  • Depositions are when an attorney asks the opposing party (or expert, witness, etc.) a handful of questions during a face-to-face interview. Responses are required to made under oath. A court reporter will draft a transcript of everything that is said during the deposition. Depositions are helpful to get important facts out of the other party and also to see how that person will appear and conduct themselves at trial.

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What to Do When Spouse Claims Disability

support-disability-claims.jpgSometimes during divorce proceedings one spouse may claim to suffer from a disability that affects their ability to work. When your spouse claims to be disabled, you might wonder if there is anything that you can do about it. It may sound awful to question the honesty of your once beloved spouse especially as it relates to a medical condition. But sometimes further exploration is necessary to determine the true extent of your spouse's disability and its effect on their ability to work. This is especially the case if your spouse has already given you reason not to trust them or if your spouse has made it apparent that they are hungry for money and will do anything to make you "pay up".

Is the Disability Really Valid?
A spouse may have a non-specific claim of disability for conditions such as stress or depression, which might affect their ability to return to work. If you have doubts about the validity of the disability it may be important to investigate further.

You Agree Disability is Valid, but Does it Really Impact Employment?
If your spouse was diagnosed with a disability during your marriage, then you might be less likely to question the validity or existence of the disability. However, you might still question whether your spouse's disability truly impacts their ability to pursue all forms of employment. While your spouse's disability might impact certain types of work, that doesn't mean that there are absolutely no fields of work out there that your spouse might still be able to do despite their disability. For example, if your spouse has a physical disability, then a labor intensive job is likely not even an option. But that doesn't mean that your spouse can't still work a desk job that doesn't require any physical labor or strenuous movement.

support-disability-job.jpgIndependent Medical Examination
An Independent Medical Examination ("IME") is a discovery tactic that many family law attorneys recommend their clients consider when a spouse's disability, if any, is at issue. An IME is a physical or mental examination of an individual done by a doctor, physical therapist or chiropractor who has not previously been involved in that individual's care.
In family law cases, the purpose of the medical examination is typically to enable the Examiner to form an opinion:
• if, and to what extent, the spouse being examined is able to work
• if and to what extent she has any limitations that limit her ability to work
• the hours she can work
• the conditions under which she can work
• other limiting factors her illness creates in order to be productive in the workplace.
In essence, an IME is one way to help determine what limitations to employment exist as a result of the spouse's medical condition. Either your spouse will need to stipulate to the IME or you will need to show good cause in order to obtain an order from the Court for an IME.

Vocational Evaluation
An IME is different than a vocational evaluation, which is used to determine the spouse's ability and opportunity to work. Once the IME report is ready, you might consider also hiring a Vocational Evaluator to give an opinion as the spouse's ability and opportunity for employment in light of the limitations due to the person's medical condition.

The purpose of going to all of the trouble of determining first whether your spouse has a disability and then to what extent that disability does or does not limit employment typically has to do with calculation of support. For instance, if your spouse is currently not working but both the IME and Vocational Evaluation support the opinion that your spouse is able to work, then you may request that the court impute income to your spouse for purposes of calculating support.

Continue reading "What to Do When Spouse Claims Disability " »

Upward Modification of Spousal Support Post-Judgment

spousal-support-modify-lottery.jpgSpousal support is a hot topic in divorce not only during the divorce process but also after the parties' divorce judgment has been processed and finalized. We often meet with clients who are currently paying spousal support pursuant to court order and, based on a substantial change in circumstances, would like to request a downward modification of spousal support so they don't have to fork out so much money each month to their ex-spouse. However, we sometimes also get requests from clients who are the recipients of a spousal support award and would like assistance with getting an upward modification of spousal support so that their ex-spouse actually pays them more each month.

A person currently receiving spousal support pursuant to the initial court order may be inclined to seek an upward spousal support modification if, for example, at the time of divorce the spouse receiving spousal support was making a decent living (and thus the need for spousal support was minimal) but post-judgment that spouse lost their job or has health issues that result in an increased need for spousal support to meet that person's reasonable needs. Another potential reason that might pique a person's interest for seeking an upward modification of spousal support includes situations (although quite rare) where the person paying spousal support hits the jackpot on the lottery and arguably now has a much higher ability to pay.

A request for a spousal support modification requires the party seeking the modification to show that there has been a material change of circumstances since the most recent order. The Court will consider whether there has been a significant change in any of the factors set forth in Family Code Section 4320 (the same criteria considered for initial order) when making the subsequent modification order, if any. These factors include, among others, the supporting party's ability to pay, balance of hardships to each party, and the needs of each party based on the Marital Standard of Living ("MSOL"). The MSOL is the lifestyle enjoyed by the parties during marriage and is typically measured by the parties' expenditures during marriage, including any funds put towards savings.

spousal-support-modify-arrows.jpgWhile the Court has broad discretion to modify spousal support so long as there has been a material change of circumstances, the Court does not always have jurisdiction to do so. In many cases, spousal support is subject to subsequent modification (or even termination) so long as the spousal support order has not already expired and the court still has jurisdiction over spousal support. However, in accordance with Family Code section 3591(c), if the parties' judgment has a provision that expressly states that the parties agreed to make the spousal support award non-modifiable, then spousal support cannot be modified post-judgment. In the absence of such an agreement, the court retains jurisdiction to make a decision to increase, decrease or terminate support in a later proceeding (post-judgment) pursuant to a request by one of the parties.

It is also important to note that a post-judgment increase in spousal support being granted by the Court is highly unlikely. While there is nothing that prevents the Court from increasing support, it is simply not very common in California Family Law Courts. And even if the Court is willing to entertain the idea of an upward modification of spousal support, the spousal support award would still be capped at an amount that meets the MSOL. Even if you have an experienced attorney on your side it's important to have realistic expectations and understand that getting a significant increase in spousal support, or any increase for that matter, is not very common.

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Modifying Spousal Support Post Judgment - Payor Spouse

Post judgment motions to modify support orders can be tricky. Less so with child support orders; which are often as easy as putting numbers in a program (income, child sharing percentage, statutory deductions, etc) and pressing the return button. However modifying permanent spousal support is another story.

modifying-spousal-support.jpgIn order to justify a modification of permanent spousal support, you must be able to show "changed circumstances" since the prior order was made. There are many reasons for this requirement, such as the respect for prior court orders, the assumption that the court "got it right" when they made the prior order or simply to avoid parties coming to court every few months to try to get a new spousal support order. (This goes for both the payor wanting a lower support order and the payee wanting more monthly support) In terms of stipulated spousal support orders, the Court gives great deference and respect to the contracts of the parties, and will not disrupt those agreements without substantial justification. The reasons why a party must establish changed circumstances is not nearly as important as understanding the concept itself.

The concept of changed circumstances was summed up particularly well by the Court of Appeal in a case called Marriage of West. The facts of the case are unimportant. What is important is a quote from the decision which said:

"Change of circumstances means a reduction or increase in the supporting spouse's ability to pay and/or an increase or decrease in the supported spouse's needs. It includes all factors affecting need and the ability to pay."

The focus of this blog is a discussion of the various ways a "payor spouse", that is the spouse ordered to pay support, can move to modify or terminate spousal support post judgment.

Often times, years after a Judgment of Dissolution is entered the payor spouse will suffer a decrease in their income. This could be the result of losing their job, retiring, or loss of investment/passive income. Whatever the reason, the payor is no longer able to afford to pay support at the previous level. Based on the quote from Marriage of West (above), this is a fairly clear cut change of circumstances. [Note: If you voluntarily quit or depress your income, it can be a very different story. See my previous blog on this issue.]

Another situation is when the supported spouse's needs have decreased. Examples of this are an increase in the supported spouse's income, a reduction in their monthly expenses, or co-habitation with a non-marital partner. All of these situations result in a reduction in the supported party's need for support, and are the basis for a motion to modify spousal support post judgment.

Termination of spousal support (not just reducing spousal support to $0), is a whole other animal altogether. Unless otherwise agreed to by the parties, spousal support generally terminates upon the death of either party or the remarriage of the supported party. Any other termination of support will require a showing that the supported spouse has become self-supporting and no longer has a need for support.

Whether a court will terminate spousal support will depend, in large part, on how long your marriage lasted. For marriages lasting less than 10 years the general rule of thumb is a payor spouse will pay spousal support for one-half the length of the marriage. For example if you were married for 8 years, you can expect to pay spousal support for 4 years. Of course, like most things in Family Law, none of this is set stone, so it is important that you discuss the specifics of your case with an experienced family law attorney.

modifying-spousal-support-10-year.jpgIf your marriage lasted more than 10 years, the Court will not terminate spousal support unless you can clearly show that the supported party can meet their financial needs without support. Even if the moving party can make this showing, the court will sometimes set spousal support to $0 per month, but retain the ability to modify the amount in the future should circumstances change.

Another option available to a payor spouse is to request the court make a "Richmond Order." As you have probably already guessed, this comes from the case Marriage of Richmond. (We are not very creative). Richmond Orders, sometimes called "step-down" orders, are usually made in long term marriages, and have the effect of putting the supported spouse on notice that they will receive support for a specified period of time. At the end of that period of time, support will either be terminated or reduced to $0 unless the supported spouse can prove they have the need for additional support or additional time. These types of orders are favored by the courts and are usually upheld on appeal.

Post Judgment spousal support modifications are a unique issue in family law, so it is important that you consult with a qualified family law attorney who is experienced with these types of cases.

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Keeping Inherited Money Separate

March 26, 2015

inherited-money-divorce.jpgMost parents want to ensure their children have every advantage and opportunity they can afford to provide to ensure they are successful and happy. Many parents also want to leave a financial legacy for their children after they pass away in the form of trusts or inheritances. These gifts of money or inheritances are fairly straightforward. Under California law, any property received either by gift, bequest, devise, or descent, including the income derived therefrom, is considered the separate property of the party receiving the money. Like I said, it's pretty straightforward. The complications arise when the receipt of this property or money is commingled (mixed) with community property money. Unraveling the rat's nest of commingled funds can not only be expensive, but is often impossible. This is especially true when the parties have been married for a long time.
So how can you ensure you keep your inheritance after a divorce? While not bullet proof or exhaustive, the following items can help you to keep this property separate.

Don't Co-mingle your funds
This is probably the most important thing you can do to ensure that your separate money stays that way. If you expect an inheritance, or received one prior to your marriage, keep that money in a separate account in your name only. Never put income earned during marriage into that account for any reason. Once you comingle community and separate money, you will be required to perform a tracing using a forensic accountant to unravel the transaction. If that sounds expensive, you're right. Depending on the amount of transaction, and the span of time involved, tracing separate and community funds can costs tens, if not hundreds, of thousands of dollars.

Do a Pre-nup or Post-Nup
A prenuptial agreement (before marriage) and a post-nuptial agreement (after marriage) are one way to define what property or money is separate and what property or money is community. These agreements can be very helpful if a marriage ends in divorce, but they are not fool proof. Even if you have a bullet proof pre-nup, that does not stop the other party from contesting it. Just ask Donald Trump. About Ivana's challenge to Donald Trump's prenuptial agreement, Trump wrote, "[w]e needed a bus to get Ivana's lawyers to court. It was a disaster, but I had a solid pre-nup, and it held up." More importantly, even with a prenuptial agreement, if you commingle your separate property funds with community property, you could end up spending thousands of dollars just to unravel the mess.

Do an Irrevocable Trust

If you anticipate receiving an inheritance, setting up an irrevocable trust can separate and protect the principal of that inheritance. If the trust pays out income to you, that can still be considered for spousal or child support, but the trust will protect the principal assets and money.

inheritence-live-moderately.jpgLive within your means
In California, using your separate property to pay community property bills is generally considered a gift that you cannot get back. Regular gifts of income from family that are used to pay community bills can also be considered part of the marital standard of living, so be careful how this money is spent. This is not to say that you cannot use your separate property for your family, just know that if you do, it is unlikely you will get it back.

By considering the items above and speaking with a financial planner who specializes in divorce, as well as a qualified family law attorney, you can set in place a plan to protect your separate property assets in the event of a divorce.

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"Your Cheating Hart"

March 24, 2015

cheating-heart-infidelity.jpgActor and comedian, Kevin Hart, whose new movie Get Hard co-starring Will Farrell set to release on March 27th, is on top of the world. It also appears that the feud between Kevin's first Wife and mother of his two children, Torrei Hart, and his fiancé, Eniko Parrish is over. Life for Kevin was not always so rosy. Back in May 2014 Torrei took to twitter slamming the comedian for cheating and blaming the breakup of their marriage, in part, on his infidelity.

Recently, the Wall Street Journal published an article entitled Are You Likely to Have an Affair? According to the article, the "signs" include:

  • Gender

  • Certain ages being more prone to cheating

  • History of past infidelity

  • Dissatisfaction with the current relationship

  • Exposure to potential partners at work

  • Thrill seeking or narcissistic personal traits

While studies vary, statistics suggest that sometime during their marriages, 21% of men and 15% of women are involved at some type of extramarital affair.

In California, evidence of marital misconduct is not admissible, because California is a no fault state. Though not as common as it once was, there are states where evidence of marital misconduct is not only admissible, but is potentially damaging to your divorce case. In some states, if the other party can prove adultery, it can have an impact of spousal support. Despite being a no fault state, the issue of infidelity can still have an impact on your case, both financially and emotionally.

If the injured party (that is the spouse who was cheated on), can prove the cheating spouse used community property money to advance his/her affair, then the Court could find "dissipation" and order the cheating spouse to reimburse the community for money used for the affair. This could include hotel rooms, flowers, gifts, jewelry, dinners and or even vacations. This can be difficult to prove, and in some cases the amount to be recovered may not be worth the cost of fighting. Every case is different, so you should consult with an attorney to decide whether the issue is worth pursuing.

cheating-infidelity.jpgWhether you pursue recovery of the money the other party spent on their affair, you will be faced with the emotional impact of finding out your spouse has cheated. Divorce is by its nature an emotional situation; it represents the end of a commitment made at a time when two people were very much in love. These emotions are only exacerbated when one party learns the other party has been unfaithful. While it is natural to be upset and want to push for punishment or retribution, it is important not to let your personal emotions drive your divorce case. Allowing an emotional response to map the direction of your divorce case can not only be expensive to you, it may impact your children emotionally and will get in the way of you healing and moving on.

An experienced Family Law Attorney can educate you on the legal impact of infidelity and help you determine the best course of action for your case, and not merely as a reaction to the infidelity. No matter the reason for the divorce, coming out of the divorce financially and emotionally secure should be your top priority.

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Tips for the First Year as a Single Parent

single-parent.jpgParenting is a challenge no matter how you look at it. Parenting alone, when your spouse is no longer in the picture, is arguably even harder. After a divorce, you will not be able to rely on your ex-spouse's assistance (assuming you did while married) when your children are in your custody. You will need to develop certain skills to cope with being a single parent, especially if you are the primary custodial parent post-divorce. Learning and applying these skills will take some time but will only serve to benefit both you and your children.

Don't be afraid to ask for help. After a divorce you might feel a liberating sense of independence. But try not to let this newfound independence hinder your ego and keep you from asking for help when you need it. You might think that you have already burdened your family and friends enough when they helped you get through the divorce, but that doesn't mean that they are done with you. If they stuck by your side through the tumultuous divorce they will most likely continue to stick by your side and support you in your journey as a single parent. So don't be afraid to ask for that third, fourth or fifth hand when you need it most.

It's important to develop a support group. You probably already have a support group of close family and friends who helped keep you sane throughout the divorce process. But think about also joining a local group of single parents for some extra support. Other single parents can relate to what you're going through in a way that your family or friends might not be able to do.

single-parent-alone.jpgDon't forget to take time for yourself. If you are a single parent, chances are that you are burning the candle at both ends to meet your child's every need and keep up with daily tasks. Although you're being a great parent, you're probably forgetting to take time to focus on yourself. Even if it's just an hour of quiet reading or a yoga session, give your mind and body a break from parenting every once and a while.

Getting through that first year of single parenting is something to pat yourself on the back for. Hopefully, things will only get easier from here on out. Remember that you are stronger than you think you are.

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SO YOUR EX QUIT THEIR JOB...NOW WHAT DO YOU DO? [Part Two - Spousal Support]

March 12, 2015

spousal-support-job.jpgIn Part One of this blog, I discussed the issue of income imputation (often referred to as earning capacity) in child support cases. The focus of the article was about your options if the other parent voluntarily quit their job and was seeking a modification of child support. As that blog explained income imputation (assigning income to a party that is not actually earned) is fairly straight forward based on California's significant state interest of ensuring parent's support their children. If you missed this blog, and you are facing a modification of child support based on the other party voluntarily quitting their job, I highly recommend you go back and read that blog.

But what happens if there are no children; or as is typically the case, there are orders for child and spousal support? Can you still seek to impute income at a party's previous income when they voluntarily quit their job? The short answer is yes you can.

Family Code Section 4320(c) lists the earning capacity of the supporting spouse as one factor to consider in making spousal support orders. ["The ability of the supporting party to pay spousal support, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living. Family Code §4320 (c)]

Although Section 4320(c) speaks of earning capacity, the code does not specifically define what it means. For that answer we look to the case, Marriage of Simpson In Simpson, the California Supreme Court stated "'[E]arning capacity' represents the income the spouse is reasonably capable of earning based upon the spouse's age, health, education, marketable skills, employment history, and the availability of employment opportunities."

spousal-support-who-pays.jpgMany of the same principles associated with the imputation of income with regard to child support apply to the imputation of earning capacity for spousal support. Just as with child support, the three-prong test of ability, opportunity and willingness that is found in Marriage of Regnery must be proven for spousal support as well. This also includes the principal that no finding of "bad faith" is required to support an imputation of income.

For a very long time, the Courts held that there needed to be a finding of bad faith, or in other words a deliberate attempt to avoid paying spousal support, before a court could impute income for spousal support purposes. This holding came from the case Philbin v. Philbin (1971) 19 Cal.App.3d 115. And yes, it is the same Philbin your thinking of as you read the case name.

In Philbin, Regis Philbin was working as a comedian in the late 1960's, but his income had fallen dramatically since he left as Joey Bishop's sidekick on the nationally syndicated "The Joey Bishop Show." At the time the case was heard by the trial court, Regis' annual income dropped from $95,000 per year to $27,000 per year (or $635,000 a year to $181,000 in 2014 dollars.) The Court of Appeal ultimately held that imputing income to Regis was not warranted since there was no bad faith on his part.

However, more recent case law suggests that the requirement of a bad faith finding for the purpose of proving earning capacity is no longer required.

It is important to note the Appellate Court has refused to impute income to a supporting spouse who voluntarily quit his job when the decision was based on a decision to follow a path of good works and services. In Marriage of Meegan (1992) 11 Cal.App.4th 156, the court upheld the trial court's reduction of spousal support for a spouse who quit his high paying executive position to pursue a life in a monastery as a Catholic priest. The court held, the "[r]eduction [was] appropriate where Husband [was] acting in good faith and did not resign [his] job to avoid [his] spousal support obligations." It is important to note that Meegan addressed only a spousal support order and child support was not at issue. In fact, Mr. Meegan voluntarily agreed to pay $875 per month towards his 2 adult children's college expenses. I believe if child support were at issue in the Meegan case, the court would have made a different finding.

The Meegan case is an interesting example of a situation where the Court refused to impute income to a party who voluntarily quit their job and depressed their income. It also illustrates how very fact specific income imputation case can be. It is important to contact a qualified attorney to review your case and specific set of facts to determine whether an income imputation is appropriate.

The Court's authority to impute income to a party is not limited to situations where the party quit their job. If one party refuses to get a job, or has been unemployed for a long period of time, the court may consider imputing earning capacity in these situations as well. In this situation, the party who wants to impute income will need to seek the assistance of an expert, called a vocational evaluator, to provide evidence of the 3 factors discussed above.

Spousal support requests, especially when they involve a request to impute earning capacity to a parent, can be difficult to navigate without the assistance of skilled family law attorney, so it is important to discuss your case with a qualified attorney.

Continue reading "SO YOUR EX QUIT THEIR JOB...NOW WHAT DO YOU DO? [Part Two - Spousal Support]" »

Tips for Divorced Taxpayers

taxes-divorce-irs.jpgBy now, it's likely that you've heard the H&R Block commercials or you are at least aware of their well-advertised "Get Your Billion Back America" campaign. H&R Block, like many other tax service companies, is clearly committed to pushing for consumers to use their services so they can help them get the maximum tax benefit that they deserve. Whether you use H&R Block, one of the many online tax service programs, a personal accountant or do your taxes yourself, it is important to understand how marriage and divorce may affect your taxes. Here are some helpful tips for divorced taxpayers.

1. Know your Filing Status.
Just like getting married affected your filing status, getting divorced will too. If your divorce is official as of December 31st of the year prior to when you are filing your taxes (i..e divorced by December 31, 2014 for 2014 taxes filed no later than April 15, 2015), then you will need to file separate tax returns. No, not "married filing separately", but rather "single". A change in your filing status could drastically affect the amount of taxes that you are responsible for paying.

2. Adjust your Income Tax Withholding on your W-4.
As discussed above, a change in your marital status will affect your tax filing status. As a result, the amount of income tax that should be withheld from your paycheck will change. The Form W-4 that your employer gave you to fill out when you first started your, is what determines how much income tax you have withheld from each paycheck. So once your divorce is finalized, you should go to your payroll department and ask to fill out a new Form W-4 and update the number of allowances that you are claiming.

taxes-child-spousal-support.jpg3. Know When to Claim or Deduct Child and Spousal Support.
If you are receiving/paying either temporary or permanent spousal support and/or child support, then it is important to know how to properly claim or deduct it on your tax returns. Generally, if you are the one receiving spousal support, then you must claim it as income on your tax returns. Child support, however, does not count as income for federal income tax purposes and thus is not taxable. If you are the one paying support, on the other hand, you may typically deduct the spousal support payments from your income, but not child support payments. However, it's important to take a close look at your divorce decree because sometimes, spouses agree to designate spousal support payments as non-taxable and non-deductible.

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Reconciling after Divorce is Finalized

rekindled-love.jpgThose who haven't been too jaded by divorce may choose to re-marry again. Perhaps they now know what they are looking for (or certain characteristics they are trying to avoid) in a partner or they are simply in a difference stage of life and ready for another go at marriage. But after all of the time, money and emotions that many couples go through to get divorced, the last thing you would probably expect is for that couple to give their relationship another try after their divorce has already been finalized and they have been restored to single status.

Believe it or not, people change, circumstances change, and sometimes ex-spouses are actually able to rekindle their flame post-divorce. If you are thinking about remarrying your ex, then you not only need to proceed with caution, but you also need to become educated on how your reconciliation or re-marriage will affect your divorce decree. Reconciliation after the divorce judgment has been finalized and entered by the court may require the assistance of an experienced family law attorney.

remarrying-your-ex.jpgIf you decide to re-marry your ex-husband, you may be surprised to know that not all of the provisions in your divorce decree are necessarily negated by your re-marriage. For example, many divorce judgments have a provision whereby the former spouse has waived the right to inherit from the other spouse. Remarriage to that same spouse does not void the divorce judgment, so a new estate plan will need to be considered. Spousal support is another tricky issue with regard to remarriage after a divorce judgment. If the divorce judgment includes a provision for one spouse to pay the other spousal support, when the parties remarry the spousal support will be terminated. However, if the spousal support had already ceased before remarriage, and the parties remarry but divorce a second time, then the Court might only take into consideration the length of the second marriage, rather than the combination of the first and second marriages to the same person. As discussed in my blog entitled "Reconciling after Filing for Divorce but Before Divorce is Finalized," the division of your assets and calculation of support may be significantly affected by filing for divorce a second time after reconciliation or re-marriage to the same person.

It would behoove you to consult with an experienced San Diego divorce attorney before you re-marry your ex-spouse and determine exactly which provisions of your divorce decree will survive your re-marriage. Hopefully the second time is a charm and your reconciliation is not a temporary fix. But in any case, if you have taken steps towards protecting yourself, your family and your finances, you will be better off.

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Contempt in Family Law

family-law-brothers.jpgA family law contempt action can be a civil or criminal process which is used when one party is in violation of a court order. In the civil context, the goal of the action is to correct the problem, but if criminal contempt is pursued, the violating party pay be sentenced to five days in jail per violation. Family law orders are often ignored by one or both parties causing significant frustration for both sides throughout the case. It is an expensive and lengthy process to enforce court orders and the parties regularly end up disappointed by the court's treatment of the violations.

The word "contempt" is frequently used to describe one party's violation of a family law court order. For example, if one parent fails to make a court-ordered child support payment, the other parent might tell his or her lawyer that the supporting parent is in "contempt". However, despite his or her violation of a court order, a person is not in contempt of court until that finding has been made by a judge. Therefore, if you wish to pursue a contempt action, you will have to file that request with the court before the other party will actually be in "contempt". In addition, the general public is familiar with terms such as contempt. In a support case, the supported spouse may want to hire a lawyer to "contempt" the other side if he or she is not paying support.

family-law-contempt.JPGAlthough contempt is a common method of relief shown on television and in movies, it might not be the most practical in the family law area. Considering the child support example, sentencing a non-paying party to jail time might cause him or her to lose wages or even his or her employment. In family law, attorneys often caution clients not to "kill the goose that lays the golden egg". If the supporting spouse loses his or her job, he or she will be unable to pay support. This discussion also comes up in contentious divorce cases where a vindictive spouse may want to use information acquired during marriage to get the other party fired from his or her job. Unfortunately, an unemployed spouse cannot provide financial support to his or her former spouse and children.

The family code provides litigants with a myriad of options to enforce court orders, especially child support orders. It is advisable to consult with a certified family law specialist before filing an action for contempt. Such actions may cause more harm than good in your family law matter.

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Life Insurance and Support in Divorce

divorce-life-insurance.jpgAt the beginning of each divorce case, the parties always have questions regarding how the divorce will impact their daily lives, especially their finances. One of the biggest issues, and often most disputed, is support. The parties cannot plan for their separate futures until they know whether a support order will be made and the level of support which will be ordered. Once the parties have a support order or agreement they will next consider what that support amount is intended to cover? Will my spouse have to continue paying my health insurance? Will my spouse pay for our children's health insurance? Will my spouse pay for uncovered medical and dental expenses? Will my spouse pay for extracurricular activities? Will my spouse pay for childcare? Typically these are the main concerns for divorcing parties when discussing support issues. However, it is not uncommon for family law litigants and their attorneys to forget one important issue - support in the event of the death of the paying spouse.

Life insurance can be an uncomfortable topic of discussion; however, the issue of life insurance is an extremely important subject to include in divorce settlement negotiations. In the event that the parties cannot reach a full agreement regarding all issues, they can ask the court for orders. The court has jurisdiction to address the issue of life insurance and to make appropriate orders for the parties. In cases where child and/or spousal support amounts are relatively high, it is reasonable to consider insuring the paying spouse as a form of security for support. In high conflict cases the supporting spouse may be hesitant to agree that his or her former spouse will be the beneficiary of an insurance policy on the supporting spouse's life. The supporting spouse often says "I don't want to give my former spouse more incentive to kill me". This type of argument will not likely be given much weight by a family court judge.

divorce-insurance.jpgThrough agreement or court order, once the parties determine that the supporting spouse's life should be insured as security for support, the attorneys and clients should discuss the amount of policy and which party should be responsible for the premiums. In cases where the parties take out life insurance as security for child support, the supporting spouse may be ordered to pay the life insurance premiums in the form of additional child support. If available, the parties often agree that the supporting spouse shall maintain a currently existing life insurance policy. The total amount of insurance should be based on the monthly support obligation and the number of years support will likely be paid. Each case is unique; therefore, it is important to discuss the issue of life insurance as security for support with an experienced family law attorney.

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