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Family Law FAQ's
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Child Support
Click the question to view the answer.
How is the amount of
child support calculated?
Can a support order be modified
after a court makes the original order? Under what circumstances?
If I quit or lose my job will I still have to pay support for my children?
If parents have 50-50 custody, am I still
obligated to pay support? Why?
If the other parent leaves the children and there is no court order, am I obligated to pay child support?
I was awarded $X per month in support over two months ago, but I have not beed paid yet. When must he/she pay?
If I give him/her money for support, will the money be used to buy a new car, boat or vacation with the significant other? Can I do anything about determining what the money is used for?
Can the other parent deny me visitation because I am not current on my support obligation?
How is the
amount of child support calculated?
In California, Judges and Commissioner utilize a computer program called the Dissomaster.**TM. This program calculates support primarily based on the parties’ income and the timeshare each parent has with the child. Other general factors the court can consider in making an award of support include:
*The payor parent’s ability to pay;
*The custodial parent’s expenses and needs;
*The needs of the child and the cost of medical and dental insurance;
*Child care and daycare costs;
*Costs associated with visitation;
*Other costs associated with maintaining the child’s standard of living such that the child shares in the lifestyle of both parents.
Note: Get a print out of your support emailed to
you. Click here!
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Can a
support order be modified after a court makes the original order?
Under what circumstances?
The amount of support can be modified under certain circumstances, a few of which are enumerated below. There are two methods of modifying support.
A. Circumstances leading to a modification
in support:
Support can be modified by showing the court that a significant change in circumstances has occurred since the last court order. Some common examples of changed circumstances include:
* Raise or loss of pay at work;
* Subsequent marriage;
* Purchasing a house or other real property;
* Increased or decreased child care costs;
* Birth of subsequent children;
Modifications of support are not granted
without completion of either method of change below:
B. Two methods of modifying support:
1. The easiest and cheapest way to modify support is by a voluntary
agreement with the other parent. A lawyer can draft a stipulation that can be signed by both parties and the court. This usually works when the parties have an amicable relationship. Never, ever have a verbal agreement as to the amount of support.
For example: Father loses job and requests that the other parent lower his child support until he can find a new job. She agrees, but there is no written agreement. She has a change of heart and requests the court order him to pay the arrearage that he owed during the time in question. There is no guarantee the court will accept a verbal agreement when there is a pre-existing written agreement in effect.
2. If there is no voluntary agreement between the parties, the party seeking the modification must petition the court, showing changed circumstances exist that require a change in the amount of support. BACK TO TOP
Click here to see what your modified
support may be
If I quit or lose my job will I still have to pay support for my child?
If the payor loses his job, he/she still must petition the court to change the amount of support. The reason for the loss of the job is critical in determining whether the court will reduce the prior order and request the payor to conduct a job search or not grant the reduction because of the payor’s misconduct that resulted in the job loss.
On another note, If your spouse tells you these famous words: “ I’ll just quit my job and go to jail before I pay you a dime, call me; I would love to help. BACK TO TOP
If both parents
have 50-50 custody, am I still obligated to pay support? Why?
Child support is primarily a function of three factors: Timeshare, father’s income, and mother’s income. If one parent makes significantly more than the other parent, even with the same time share, that parent will be paying support to the lower income parent.
Child support guidelines are just that, “GUIDELINES”. Parties are free to agree to any amount of support they desire. The guideline is used as a fairness guide, but not mandatory.
For example: Payor and other parent agree that although the guideline support states that payor should pay $600/mo in support, $400/mo would be adequate to meet the child’s needs. The court will enter that agreement. There can be ramifications when it comes to modifying support, so that is best left to an experienced attorney.
Another example, payor and the other parent agree that support should be paid into a Scholarshare account for college. This is permissible, indeed, encouraged.
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If the other parent leaves the children and there is no court order, am I obligated to pay child support?
Absent a court order, there is no legal obligation to pay child support to the other parent for your minor child. There may, of course, be a moral obligation, but as of the date of this writing, there is no legal requirement to do so. A judge may make a support order retroactive to the date of filing the Order to Show Cause or the date of filing the petition for dissolution/paternity. BACK TO
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I was awarded $x per month in
support over two months ago, but have not been paid yet. When
must he/she pay?
There is a two stage process to an order to pay support:
1) The order and
2) Enforcement
Example, you may have an order that the other parent pays you $1,000 per month for child support. If the other parent is not willing to comply with this order, you will need an enforcement remedy to obtain the funds through different means.
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If I give him/her money for support, will the money be used to buy a new car, boat or vacation with the significant other? Can I do anything about determining what the money is used for?
A payor frequently gripes about where his/her child support payments are going.
Is he/she buying a new car/boat or a gift for a new love interest? Save yourself the trouble and just pretend that your money is going towards the groceries and school clothes. Courts will not micro-manage how the child support is spent.
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Can the other parent deny me visitation because I am not current on my support obligation?
No. Payments of support are not a contingent factor for visiting your child. Often people fall on hard times and develop an arrears. The court will add 10% interest to your back support but will not allow the custodial parent to use that as leverage to see your child.
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Am I automatically entitled to
alimony/spousal support?
What factors do the court’s consider in making an
award of spousal support?
Do men ever get spousal support?
I have a registered domestic
partner. Am I entitled to support?
I have lived with my significant
other in California for X years. Am I entitled to spousal support?
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Am I automatically entitled to alimony/spousal support?
Unlike child support, spousal support is never mandated in every case. That is, a child’s needs are considered paramount and, if there is
still a significant disparity in income after this is factored in, the
court may award spousal support.
Example: Father earns $1,000 more per month than
mother. However, father has increased child care expenses,
outstanding tax liability, or student loans. These expenses are
relatively unimportant at arriving at a child support amount.
However, they are given more weight in the spousal support context.
Spousal support is to help maintain the status quo, not make one
spouse better off at the expense of the payor spouse’s typical style
of living.
Example 2: Mother makes $15/ hour, father makes $13/hr. This
combination may result in a spousal support order of $75/month. A
critical question arises: Although I am entitled to this amount of
support, do I want to expend the effort and pay the attorney fees to
obtain it?
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What factors will the court consider in making an award of permanent spousal support?
The court considers a multitude of factors including:
* Duration of marriage;
* Needs of the requesting party;
* The paying spouse’s ability to pay;
* Recent marital standard of living;
* Level of education of the parties/ work history;
* The supported spouse’s ability to earn;
There is no bright line rule on the length of time one spouse may be obligated to pay support to the other, but here are my observations: For short term marriages, the length of time to collect spousal support is usually one half the length of the marriage. When marriages approach the ten year mark, I have seen indefinite spousal support orders. The actual length of the support obligation is determined by a thorough analysis of the factors above, in addition to others.
NOTE: Click here to to see what support
you may be entitled to. BACK TO TOP
Do men ever get spousal
support?
As women become more prominent in the workforce, it is becoming more common for men to be the recipients of support. Spousal support is gender neutral. BACK TO TOP
I have a registered
domestic partner. Am I entitled to support?
Since 2005, substantial changes have occurred in the field of Family Law, and a relationship that was once considered not applicable to Family Law now plays a crucial part. Please call to discuss. BACK TO TOP
I have lived with my
significant other in California for x years. Am I entitled to
spousal support?
Under certain circumstances, you may be entitled to some form of compensation, but not spousal support. BACK TO TOP
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ATTORNEY'S FEES |
Can I use a joint credit card
or joint account for the payment of my attorney fees?
Can the court order that my spouse/other parent pay my attorney’s fees?
I have no money to pay an attorney. Do I have other options?
Can a court make an award of attorney’s fees even if my attorney only
prepares paperwork and does not appear in court with me?
Can I use a joint
credit card or joint account for the payment of my attorney fees?
Yes. It is permissible to pay your fees with a joint credit card or account. You may be ordered to repay these funds at a later date.
For example: You have a joint account with a balance of $10,000. You pay $2,500 from this account for an attorney. Under CA law, your remaining interest in this account would be $2,500.
Example 2: Same facts as above, but you charge $2,500 on a joint credit card. The court could offset this expenditure by reducing your interest in the joint checking account by $2,500.
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Can the court order that my spouse/other parent pay my attorney’s fees?
As a general rule, when there is a significant disparity in incomes between the parties, the court may order the higher earner to pay all or a contributive share of the other party’s attorney’s fees. This is done in an attempt to even the playing field between the parties. For example, one spouse may stay at home with the children while the other spouse works. The court would likely order the working spouse to pay for the other spouse’s attorney’s fees.
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I have no money to pay an attorney. Do I have other options?
Some attorneys will accept F.L.A.R.P.L.S. (Family Law Attorney Real Property Liens) as security for the payment pf your fees. F.L.A.R.P.L.S. are encumbrances on your community share in real property. When the property is sold, the attorney is paid from the proceeds. Alternatively, a party can pay his fees in exchange for a release of the F.L.A.R.P.L. BACK TO TOP
Can a court make an
award of attorney fees even if my attorney only prepares paperwork
and does not appear it court with me?
This is an additional benefit of hiring an attorney to prepare your paperwork instead of a paralegal. A party may petition the court for the attorney’s fees expended in preparing their dissolution paperwork as long as the appropriate paperwork is filed concurrently with the moving papers.
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CHILD CUSTODY AND VISITATION |
What is legal custody?
What is joint physical custody?
Do I need a lawyer for a custody dispute?
What is
mediation?
Do I need to go to court to modify custody?
My wife/girlfriend tells me that the judge always
gives custody to the mom. Is this true?
What are my rights regarding my child without a
court order? Do I really need an OSC (Order to
Show Cause)?
What is legal
custody?
Legal custody is a concept that refers to making decisions about your child ’s life. An example includes choices of doctors, school, the beginning of a new religion, and starting counseling.
Joint legal custody requires the parents to confer with each other before making the decisions. A party may act in an emergency situation without the other party’s consent. Joint legal custody is the norm. Few parents are at such extreme odd that they cannot join together to make important decisions together for their child.
For Example: Mom signs son up for therapy because he is frequently in trouble at school. Dad is against therapy and may prevent it from occurring by withholding his consent.
Sole legal custody allows one parent to make the decisions for the child without requiring communication with the other parent. Of course, the parent without legal custody rights may petition the court in the event that the decision made may be harmful or contrary to the child’s best interest. Sole legal custody is usually awarded when one parent is not involved or there is high conflict in the case. BACK
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What is joint
physical custody?
Joint physical custody is defined as both parents having significant time with the child. There is no fixed percentage that triggers the term; however, the term is frequently used to describe visitation schedules where one parent has 40-50% of the time with the children. Special rules apply when the parents are awarded joint physical custody. Of particular significance is one parent’s right to move away with the child.
Sole physical custody is at the other end of the spectrum, One parent is labeled as the primary care giver while the other parent has the right of visitation with the child.
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Do I need a lawyer for
a custody dispute?
When parties are at odds, it is advisable to consult with an attorney for help in determining the schedule best for your child. An attorney can assist you with a strategy to help you maximize your success in a court proceeding with the other parent. In addition, an attorney’s familiarity with the particular judge handling your case is paramount in how your case should be presented. Finally, even if you have the best paralegal in the world to draft your legal pleadings, it is very reassuring to have a great lawyer can during the court proceeding. It is imperative to ensure that you and your lawyer are compatible.
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What is
mediation/conciliation?
Attendance at a mediation/conciliation appointment is required by the courts for parents requesting the court’s assistance in a parenting plan. The appointment typically lasts for an hour. A counselor invites the parents into a room either together or separately to determine if the parties can resolve their custody dispute without the court’s aid. Some counties report the interaction of the parties, and the counselor makes a recommendation to the court based on their observations. Other counties, including Los Angeles, are non-reporting counties. In these counties, all that is reported to the court is whether or not an agreement was reached.
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Do I need to go to
court to modify custody?
Parents can request the services of the conciliator to modify their parenting schedule. Or, if both parties are in agreement, an attorney can draft a stipulated order to modify the custody or visitation schedule. The only time that court intervention is necessary is if the parents do not agree to the change. The burden of proof in changing custody is on the party requesting the change. BACK TO TOP
My wife/girlfriend
tells me that the judge always gives custody to the mom. Is this
true?
The court, in awarding custody or visitation to a parent considers what is in the child’s best interest. Gender should not be a consideration in making a custody determination. On an interim basis, the court looks to maintain the status quo; that is, the court will base it’s order on the recent history in the parenting schedule the parents have had with the child. It is becoming more common for parents to have almost equal time with the child.
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What are my rights regarding my children without a court order? Do I really need an OSC (Order to Show Cause)?
Absent a court order, both parents have an equal right to the custody of their child. An Order to Show Cause is a pleading that requests the court’s immediate attention pending the resolution of your case. Often times, divorces or paternity actions can take an excess of six months to be completed. During this time, it may be helpful to have a visitation and support schedule in place to minimize any potential confrontations with the other parent. Typical OSCs involve: Child Custody and Support, Spousal Support and Injunctive Relief. See the full range of OSC topics in Rates & Services.
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