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Divorce / Custody for Questions and Answers
What are the grounds for divorce in California?
Should I file for legal separation instead of a divorce in California?
What is an annulment and is it better for me than a divorce?
Is a divorce right for me?
How will the divorce affect my children?
Will I be able to make ends meet after I separate?
Should I get back into the single’s scene (dating)?
Are there other options to divorce?
Are there any rules I must follow after I file for divorce?
What if my spouse commits any domestic violence against me or my children?
What is child support and how do I know if am I entitled to it, or if I will be obligated to pay it?
What is legal and physical custody?
What if I cannot agree on custody and visitation with the other parent?
Can grandparents acquire any visitation and custody rights?
How can I get my spouse to disclose documents and information about our property, assets, debts and finances during our divorce proceedings?
What is community and separate property and how are they divided by the court?
What is spousal support and how do I know if am I entitled to it, or if I will be obligated to pay it?
What are some of the child and spousal support tax issues I should know about?
Do I need an attorney to handle my family law case?
Are the rules in family court the same for registered domestic partners as they are for married couples?
What are the grounds for divorce in California?
A divorce (also called a dissolution of marriage) in California is the most common way to terminating a marriage contract. The divorce court declares the marriage contract terminated, divides the parties’ assets and debts, decides on issues of child and spousal support, and rules on custody and visitation regarding any children of the marriage. Historically, a divorce could only be granted based upon allegations of adultery and mental cruelty. Today, either spouse could simply seek a divorce because he or she simply wants one based upon irreconcilable differences. A divorce is yours for the asking; that’s why it is called a no fault divorce. Any spouse seeking to obtain a divorce in California must state either irreconcilable differences, or incurable insanity in the divorce petition. Besides this, one of the spouses must have lived in California for six months and in the county of filing for three months before filing the Petition for dissolution.
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Should I file for legal separation instead of a divorce in California?
California allows legal separations. This procedure is usually used to divide the community property and provide for child custody and support in cases where the husband and wife live separately, but remain unmarried. It is more commonly used to break the financial rights and obligations of a couple whose religion does not permit a dissolution. It may also be of advantage where a divorce would cause one of the parties to lose social security, veteran’s, or other benefits; or cause a spouse with a serious illness or disability to lose medical insurance. Legal separation is procedurally used in California when (a) a spouse physically separates (e.g., leaves the family residence) with the intent to obtain a divorce, the parties are said to be legally separated; and (b) when a spouse obtains a formal legal separation in court. When either spouse is legally separated, the laws of community property usually stop and the assets and debts acquired by either spouse after the separation become that spouse’s separate assets and debts. A spouse does not need to move out of the family residence to be legally separated. Legal separation is sometimes a ‘state of mind’. The decision to divorce without the intent to reconcile is what is important. The grounds for seeking a legal separation are the same for seeking a divorce. As such, unless one of the reasons above are present, there is usually little reason to seek a legal separation when a dissolution would better serve both spouses. There is no residency requirement for filing for legal separation. Remember, an experienced family law attorney is better able to assist an individual in determining whether a legal separation or divorce is in that person’s best interest.
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What is an annulment and is it better for me than a divorce?
The legal procedure in California for an annulment is called a nullity proceeding. There is a big difference between a divorce and a nullity. A divorce judgment recognizes a valid divorce as now being terminated. A nullity judgment recognizes the marriage as always being invalid. This difference is essential because it will affect the division of assets and debts, and whether the court will or will not make an order for spousal support. It may make no difference whatsoever on custody and support depending on the case because the court still has the best interests in mind for the children and the children are still entitled to their right to support. A divorce is much easier to obtain than a nullity because the court will simply give you one based upon your request within the Petition. However, the court will only give you a nullity if you can prove in court through testimony and evidence the existence of fraud, duress, lack of mental capacity, a prior unknown marriage, the party was underage, and/or physical incapacity. Although a nullity is not easy to obtain, it should not it be attempted without consulting with an experienced family law attorney.
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Is a divorce right for me?
Before you begin your divorce proceedings, you should seriously consider the potential effects and benefits that it could have on your life. Minimally speaking, divorce in California takes about six months to obtain, but contested divorces may last much longer. If you are absolutely positive that you want a divorce, you should still know the ramifications and benefits that the divorce will have on your life, your assets, your debts, and most importantly, your children. A divorce can be an emotionally explosive and confrontational experience, but it does not have to be with the right counsel and advice. If you proceed with a divorce, the mental, physical and financial hardships normally associated with a highly contested divorce can be dramatically reduced with the assistance of an experienced and understanding attorney. A heated divorce should never be attempted by anyone in pro per (or representing yourself). As a practical matter, the divorce court is interested in resolving only certain issues (the termination of your marriage; the division of assets and debts; the care and custody of your children; spousal support, and child support) although other issues such as domestic violence and child abuse rightfully remain high priority issues with the family court. Before you file for divorce, you should consider (a) how the divorce will affect my children?; (b) will I be able to make ends meet after I separate?; (c) should I get back into the dating scene?; and (d) are there any other options to divorce?
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How will the divorce affect my children?
Not all children react the same to their parents filing for divorce due to each child’s maturity level, bond with both parents, intelligence, emotional well-being, experience in their young lives, and many other factors. Whatever the reaction is, the effect on them will be felt, and both the children and your relationship with them may become more strained because of the children’s own feelings of blame, guilt, disappointment, and even anger. This may be the most painful and long-lasting aspect of the divorce. However, despite this, it would be your parental obligation to help your children handle any painful effects of the divorce by attending professional counseling along with the children. Some parents getting a divorce jointly attend counseling sessions with their children. Children do survive divorces, but it truly up to the parents, supporting family members and friends to provide the much needed emotional support they may need.
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Will I be able to make ends meet after I separate?
Most couples physically split up before they file for divorce. Some in fact will still live together in the same residence during the divorce proceedings because of either financial reasons or because of the children. And then some couples continue to live together in the same residence even after the divorce judgment is entered, without ever physically separating. If you and your spouse were enjoying a higher standard of living during your marriage with two incomes, or if you were the stay-at-home parent (mother or father) not earning any income, but maintaining the household and or children while the other spouse worked, then you must consider the financial strain that may accompany the separation. In almost every case the court will make orders for child and or spousal support for that parent or spouse. Child support is designed to help pay for those expenses associated with raising children. Spousal support is designed to help support the spouse. Both supports are based on what is termed guideline when the parties usually cannot agree on amounts that are in the best financial interest of the child or the spouse. If you are concerned about making ends meet after your separation or divorce, you can do so by having family and friends help out, modifying your budget, receiving support that you would be entitled to, eliminating unnecessary debt, seeking government financial assistance when available, working more hours or increasing your income, etc. A good family law attorney does not only help you win your case, but also makes sure that you receive your share of the community assets of the marriage.
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Should I get back into the single’s scene (dating)?
Whether or not you get back into the dating scene is a very personal and important decision that could have positive and or negative effects on both your children’s and your lives. The effect is dependent on so many factors such as (a) the quality and background of the person you would be dating; (b) whether that person would accept or at least treat your children with kindness; (c) whether your children will accept a new person in your lives; (d) any potential emotional impact that a new person or dating would have on the children; (e) whether the other parent has visitation rights and or custody of the children; (f) whether your dating could create greater hostility between both you and your ex spouse due to issues such as jealousy and hurt feelings; (f) the financial costs of dating; (g) whether you are able to balance your dating with your parenting and working schedule; (h) whether you are able to still provide that quality time the children need especially in light of the fact that the children’s lives have been or will be strongly impacted by the divorce. Although the issue of whether or not you should get back into the dating scene is a personal one, it should be carefully thought through considering all of the above issues, and of course speaking to an experienced family law attorney who could provide the common sense advice that would be in your and the children’s best interests.
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Are there other options to divorce?
A California divorce court will grant a divorce to a married couple who is unable to save their marriage by any sort of counseling, therapy, intervention of the court and the like. If there is any possibility of saving your marriage through counseling, especially if children are involved, then the couple is always encouraged to first take that route. Children do not want to see their parents divorce or living separately from each other. Because of their innocense, children sometimes blame themselves for their parents’ breakup. Counseling would help both the parents and the children. If you have no children and you believe that your marriage can be saved, marriage counseling handled by a certified marriage counselor should be an option not passed. However, if you are currently seeking a divorce attorney, then you may already decided that you want a divorce and no one can change your mind. If professional counseling is not an option due to financial concerns, then some professionals recommend that you confide in the guidance of your close family members and friends. If your family members and friends never liked your spouse or have biases against your spouse, then your desire to divorce will only be confirmed and supported. Nonetheless, whatever course you decide to take, you should always be placing your children’s best interests, a standard that is widely used by the family courts, on the top of the list. If both you and your spouse agree to pre-divorce counseling to save your divorce, be as proactive as possible by not arguing with your spouse. Talk to your spouse about how you feel about the divorce, and the effect that the divorce may have on your children. Try not to make accusations that may spark an argument. Also try not to interrupt your spouse while he or she is speaking. Also try to say kind things about the other spouse. Make an attempt with your spouse to find out why the marriage is not working. Your goal, whether you eventually divorce or decide to stay together, is to try to work together with your spouse and maintain a level of reasonable communication that will continue during the divorce proceedings and after. You will also find that by maintaining a good communication with your spouse, the financial and emotional transitions in your life and your dissolution may go a lot more smoothly than you expect. Always remember to confide in your attorney because your chances for success will increase.
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Are there any rules I must follow after I file for divorce?
Yes. Upon the filing of the Petition for divorce, automatic temporary restraining orders go into effect which prohibit both spouses from doing certain things that effect their children and assets. For one, neither spouse can take any of their minor children out of California without express written permission of the other spouse or a court order. Also, neither spouse will be allowed to close financial accounts, change beneficiaries on insurance policies, remove the other spouse from health insurance coverage, borrow against real and personal property without the other spouse’s permission. You are of course allowed to continue to pay your bills and expenses and continue your ordinary and reasonable spending for the necessities of your and your children’s living. It is usually the best policy to discuss with your spouse about any exorbitant spending or big purchases you may wish to make since you may inadvertently create a community property debt or create a legal issue that may need court intervention to get resolved. Always be prepared to create a financial journal of your expenses if necessary so that you are prepared to share the same with your counsel and be prepared to account for such expenditures to the family law judge. An experienced family law attorney will advise you of the dos and don’ts of each an every rule to follow so that you minimize or eliminate any detriments to your case.
What if my spouse commits any domestic violence against me or my children?
For some spouses and children, domestic violence is a sad reality. If either you or your children are victims of domestic violence, the family court has some remedies to assist you. First and foremost, do what you can to protect you and your children. If your spouse injures you or anyone else in your household, call the police immediately, then contact your attorney. If the police find that domestic violence is present, they will issue an Emergency Protective Order (also called an EPO) on the spot which remains in effect for only 5 court days. The EPO legally prohibits your spouse (or partner) from coming within a certain distance of you. Besides that, the EPO may give you temporary custody of your children and bar your spouse from the family home. Your attorney will then seek a much longer temporary restraining order (called a Temporary Restraining Order (TRO)) from the family court on what is called an ‘Ex Parte’ basis. It is always advisable to have an experienced family law attorney handle this for you because of the special circumstances involved, the particularities, the specific wording needed in the moving documents, the knowledge of the local rules and specific courtroom procedures involved in any individual case.
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What is child support and how do I know if am I entitled to it, or if I will be obligated to pay it?
Child support is the child’s right to financial support from the parents. Both you and the other parent are legally responsible for supporting any children between you if they are under the age of 18; more specifically, child support continues until the child has graduated from highschool or has reached the age of 19, whichever occurs first, as long as the child is unmarried and not emancipated. In some special circumstances child support may extend past adulthood depending on whether the child is incapacitated (physically or mentally). Neither parent can waive the obligation to pay child support, whether orally or by written stipulation. The amount of child support payable by the obligor parent is determined by established guidelines called ‘guideline support’. Guideline support is conveniently calculated by computer programs (Dissomaster, X-Spouse, etc.) used by the family court, and available online, or through your family law attorney. Support is calculated by imputing each parent’s respective incomes, their respective share times with the children, and any available deductions that either or both parents may have. The more deductions that the obligor parent has, the less he or she will pay in support. Examples of applicable deductions would be health insurance premiums paid, support obligations paid to other children through a court order, etc. Only certain deductions are allowed for purposes of reducing the support amount, and your attorney would be in the best position to advise you of this. The less visitation time the obligor parent has, the higher the support payment will be, and vice versa. Also, the more support would be paid for more children of the relationship. If a parent is having a problem with receiving payments from the other parent, the recipient parent can seek what is called a ‘Wage and Earnings Assignment Order’ from the court. A parent can also seek the services of the Department of Child Support Services (DCSS) for collection of child support and spousal support. DCSS has no jurisdiction to make orders for custody which is handled by the family court. Either parent can also seek to modify the current support obligation before or post judgment based upon a ‘substantial change of circumstances’ requirement. Examples of change of circumstances would be an increase or decrease in income as a result of disability, extended loss of work, etc. The court will ultimately determine if the change in circumstances justifies a modification in support. The family court will not reduce or eliminate an obligor’s obligation to pay child support if the recipient parent remarries and is being supported by the new spouse. In other words, the court does not take the new spouse’s income in consideration when initially calculating or modifying support. To do so would put a chilling effect upon marriage, and it would ultimately lessen the support obligation of the biological obligor parent. It would always be the biological parent’s obligation to pay child support unless the obligor parent gives up the right to the child through an adoption proceeding. Parents can agree to stipulate for support payments that are below or above the guideline figures as long as certain standards are met with the court. Some recipient parents agree to receive less than guideline support in order to settle their case which can sometimes be in the best interests of all parties and children in both the short and long run because it may avoid resistance from the obligor parent in paying support.
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What is legal and physical custody?
It is always in the best interests of the children for both parents to reach an amicable agreement that assures the minor children ‘frequent and continuing contact with both parents.’ Only the judge can make orders on custody and visitation. The type of custody you would have depends on the amount of share time both you and the other parent have with the children. There are two basic forms of custody: (a) legal and (b) physical. Legal custody refers to parenting decisions involving schooling, religion, medical, etc. Almost all court orders give joint legal custody to both parents because each parent may need to make a legal custody decision during their visitation time, even if the parent has minimal visitation. Only when a parent has supervised visitation, or if there is a restraining order, or where other special circumstances exist will the court give sole legal custody to the custodial parent. When the court does decide on your physical custody case, the court will either give you sole physical custody, primary physical custody, joint physical custody or secondary physical custody. The court mediator, depending on the county, may highly influence the judge by their mediation recommendations on what type of custody and visitation will be ordered, unless the court is swayed by testimony at the custody hearing that would follow the mediation. In some cases, the court will order, or the parties can stipulate to, the intervention of a child custody investigation, minor’s counsel, or a child psychology evaluation. When this happens, these professionals will investigate the case more thoroughly, speak to the children and people involved in the children’s lives, and be able to report back to the judge with the information the judge will need to make a more well-informed decision on custody and visitation.
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What if I cannot agree on custody and visitation with the other parent?
This section applies to any person who is a parent, not just married persons going through a dissolution. As stated, in California, the paramount rule is the best interests of the child. To assist in that standard, the family court judges prefer that the parents make strong efforts to work out their own visitation and custody orders that would work for them and the children. It is when the parents cannot decide on visitation and custody that the courts intervene through mediation and litigation. Mediation (or conciliation) is where a court mediator will see both parents without the children in an attempt to reach a visitation and custody agreement. Depending on which county you reside in, some conciliation departments are more organized and successful than others in helping the parents to reach an agreement. If you attend mediation, your family law attorney will help prepare you for a successful mediation. Only after you complete mediation will the court hear your custody case. However, as your attorney should advise you, the judge cannot possibly know your children as well as you and the other parent. It only makes sense that you and the other parent work it out between yourselves. The assistance of an experienced family law attorney is always beneficial. If the judge is faced with making a decision on physical custody (whether it is a modification proceeding or not) the judge must consider the health, safety and welfare of the child. The judge will consider many things when making an order for custody such as a child’s preference (depending on the child’s intelligence and understanding), any abuse allegations, the closeness of the relationship that both parents have with the child, the ability of each parent to be able to provide for the child, the exposure that the child has had with each parent, the living conditions that the child would be subjected to, the moral fitness of each parent, the mental and physical health of each parent, the bond the child has with friends, school, etc., and other factors that the judge finds relevant. Sometimes it is impossible to predict the outcome of a custody battle because there are so many factors involved. Sometimes it is easy to predict the outcome especially when one of the parents has been arrested, or has a criminal history, or there are issues of drug, alcohol and abuse involved and that can be proven in court. Just making an allegation of drug, alcohol or physical abuse will not guarantee a successful outcome in a custody case, and it may even hurt your case by doing so.
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Can grandparents acquire any visitation and custody rights?
Although parents have first priority to visitation and custody of their own children, more grandparents than ever are seeking and obtaining visitation and even custody rights over their grandchildren. The simple answer to this question is yes, but grandparents must be able to show the court why it is in the best interests of the children that the grandparents should have visitation or custody rights along with or over both parents’ rights. In one instance, the grandparent can join one of the parents in the divorce or custody action. This grandparent would then be in a better position to seek certain custody and visitation rights because the one parent is consenting to the visitation. This could be for example where the other parent is unfit and the parent requesting visitation or custody for the grandparent may be in the military and thus cannot parent the children. Under these conditions, the court would have greater discretion to grant visitation or custody to the grandparent if it is in the child’s best interests. Another instance would be where the grandparent unilaterally petitions the court with or without the parents’ consent. In that case, the grandparent must show that a preexisting relationship exists with the child and that if the court did grant visitation rights to the grandparent those rights would not interfere with the parents’ rights.
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How can I get my spouse to disclose documents and information about our property, assets, debts and finances during our divorce proceedings?
In any divorce, whether by default, contested or uncontested, one or both spouses must fully disclose to each other all of their assets, debts, and finances in disclosure documents before the court will grant a final judgment for dissolution of the marriage. In a divorce where both spouses are parties, both parents must first serve the preliminary disclosures of all assets, debts and finances on each other while the final disclosure requirement may be waived by both parties. If the other spouse is refusing to produce any records in their disclosure documents or even refusing to serve and file their disclosures, the one spouse seeking the information has multiple solutions and resources. First, the spouse, through their attorney of record, can always file a motion to seek an order forcing the other spouse to serve their preliminary disclosure requirement. Second, the spouse can use several forms of discovery such as interrogatories (written questions), requests to produce documents, depositions, etc. These requests are procedurally submitted on pleading paper and must conform to certain rules of civil procedure or otherwise such requests will not be effective. The spouse can further serve subpoenas to the other spouse’s work, insurance carrier, tax preparer, etc. Documents can also be obtained from the DMV, hospitals, banks, children’s schools, and all other financial institutions, although privileged communications and privileged documents (doctor prescriptions, statements by clergy, attorney-client communications, etc.) usually cannot be produced because of the applicable privilege. Additionally, parties and witnesses (teachers, experts, friends, fellow workers, eyewitnesses, family members, etc.) with unprivileged information may be forced to testify in court under subpoena about the knowledge and information they have that may be relevant to the case and to the court. These methods of discovery can be completely avoided through the guidance of your attorney working with your spouse’s attorney or with your spouse to have the documents you want and that you are legally entitled to produced without litigation.
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What is community and separate property and how are they divided by the court?
First of all, the court does not need to intervene to characterize and divide property if both spouses are able to amicably come to a resolution as to the division and equalization of their assets and debts, whether separate or community. The parties through their counsel can submit their marital division agreement to the court in a form of a Marital Settlement Agreement or Stipulated Judgment. This is obviously the least expensive and less stressful way to wrap up property issues in a divorce. In addition, most judges do not want to deal with the details of valuing all assets (dining room table, clothing, televisions, cameras, tools, etc.) of the marriage because trying these issues (taking testimony from parties, oral arguments, cross-examination, direct examination, etc.) is too time consuming and the costs of litigating the value of certain minimal assets would normally exceed their respective values. Some judges even send property evaluations such as these to private arbitrators so the court’s time is not wasted. Remember, family courts these days are extremely busy. The judges do not have the time and patience to handle minor property evaluation issues when the courts have more pressing issues such as domestic violence and custody. Larger assets such a real property, cars, etc., are usually easier to value through appraisals and Kelly Blue Book valuations and the values of those larger assets usually do not exceed the costs to pay your attorney to fight for your share of the equity in those assets.
The two most common forms of property dealt with by spouses and the court is community and separate property. California law recognizes that both spouses make valuable contributions to a marriage. Community property is any and all property that you and your spouse acquired through labor or skill during the marriage. You may have a community interest in what you believe is 100% your spouse’s separate property. For example, you may have an interest in pension and profit-sharing benefits, stock options, other retirement benefits or a business owned by one or both of you. You may additionally own a community interest in the house that your spouse purchased before marriage even though he or she never placed your name on the title. And, if your spouse placed your name on title during the marriage, or the spouse refinanced the residence during the marriage, or paid the monthly mortgage payments with community property funds or income, then you may have a large vested interest in the residence depending on the amount of the debt against the residence and any rights of reimbursement the other spouse may have. California is a community property state. That in part means that each spouse owns one-half of the community property. This is especially true even if only one spouse worked outside of the home during the marriage and even if the property is in only one spouse’s name. Evaluating your community interest in marital property is not always an easy task and usually requires the help of an experienced family law attorney who has litigated issues concerning real property. Like community assets, with few exceptions, debts incurred during the marriage are community debts as well. This includes credit card bills, even if the card is in your name only. However, student loans are usually an exception and are considered separate property debts because that debt benefits the one spouse who receives the benefit of the education. On the flip side, the spouse who helped contribute to the other spouse’s education may be entitled to a community benefit from that spouse’s education. Community property possessions and debts are divided equally unless you and your spouse agree to an unequal division or unless there are more debts than assets. Keep in mind that if your spouse agrees to pay a community debt and fails to do so (or files for bankruptcy and discharges the debt), you may have to pay the creditor. If you have already signed away your rights to certain property, it may not be too late. Quick intervention by your counsel may avoid the agreement becoming a judgment, and if the agreement has become a judgment, it is still not too late for your attorney to file a motion to set aside the judgment, unless you allowed too much time to pass. Finally, if you and your spouse cannot agree on the division of your debts and possessions, the judge will make the decision for you.
Separate property is property acquired before your marriage, including rents or profits received from these items; property received after the date of your separation with your separate earnings; inheritances that were received either before or during the marriage; and gifts to you alone, not you and your spouse. If one spouse wants to keep separate property separate, then by all means do so, but legal counsel and guidance is paramount in doing so. Never take a chance in believing that your separate property shall remain separate simply because you never placed your spouse’s name on title to the property. The real problem with identifying separate property occurs when one spouse’s separate property has been mixed with community property. This creates a tracing issue that is sometimes highly complex and requires the assistance of an attorney. Complexities also arise in the areas of a business owned by one spouse before marriage and the other spouse made contributions (both financial and time) during the marriage into the business. This may necessitate the somewhat costly involvement of an expert evaluator who will evaluate and appraise the business for its community and possibly separate property interests. Unlike community property debts, debts incurred before your marriage or after your separation are considered your separate property debts.
Remember, the family court is a court of equity and fairness. You want to make sure that you at least receive your fair share of your community property of the marriage. Teaming up with the right attorney may be the best asset you have during your divorce proceedings.
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What is spousal support and how do I know if am I entitled to it, or if I will be obligated to pay it?
Spousal support is not mandatory like child support. Whether the court orders spousal support to be paid by one of the parties is dependent on many factors as outlined in Family Code section 4320. In California, spousal support is the term used for alimony. Spousal support is money that one spouse pays to help support the other after the filing of a dissolution. Spousal support is never ordered for the support of children of the marriage. You must be a domesticated partner, spouse, or putative spouse in order to receive spousal support. Spousal support can be given to either husband or wife, depending on which spouse is the higher income earner. In practice, spousal support, like child support, is computed through a computer program and is usually calculated along with child support. Section 4320 allows the judge much discretion in determining spousal support. In setting spousal support, the court looks at such things as the standard of living during the marriage, the marketable skills of the supported party, the job market for such skills, the supported party’s time during the marriage devoted to domestic duties, the supporting party’s ability to pay, the length of the marriage, the age and health of both parties, the earning capacity and job histories of both individuals, and many other factors the judge will consider. As a general rule, the length of time that support will be paid depends on the length of the marriage. The 10-year rule (as outlined in section 4320) allows the court to order spousal support for one-half the term of a marriage that is less than 10 years old. For example, an 8-year marriage would equate to spousal support being paid for a period of about 4 years, but this rule is not set in stone. The goal behind this rule is that the supported party is to make an effort to become self-supporting in that period of time. The term could be for a period of more or less, depending on what the judge wants to do. For marriages lasting longer than 10 years, the courts can order spousal support for an indefinite period of time. The judge must consider each and every factor through evidence, testimony of the parties and experts. The court can also order spousal support in a default proceeding. Spousal support is based on actual earnings by the payor spouse. However, if the payor spouse has voluntarily reduced his or her earnings to lessen support, the judge can use an ability to earn standard. The courts do not impute a new mate’s income into the calculation. You should always have an attorney assisting you when inquiring and seeking spousal support because of the complexities and factors of section 4320. Additionally, without the proper guidance and knowledge, you may inadvertently waive your right to spousal support in the short or long term.
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What are some of the child and spousal support tax issues I should know about?
It is common knowledge that the United States tax code is very complicated and constantly changing. Your family law attorney will advise you of what you should know about the tax consequences of child and spousal support, but the smart family law attorney will advise you to additionally team up with a very good tax preparer. It is almost impossible for your attorney to give you detailed and updated tax advice if he or she is not a tax preparer or Certified Public Accountant. Your filing status during your dissolution will determine the amount of a refund you will or will not receive. You do not need your spouse’s consent to file your taxes under the status of ‘married filing separately ’ because it would be a separate filing. However, you most likely would receive a larger refund by filing under the status of ‘ married filing jointly ’. The decision on what status is best for you is best determined by your tax advisor, but guidance herein from your family law attorney should additionally be sought. Both child support and spousal support are considered differently by the IRS for the payor and the recipient. As for child support, the parent receiving support will not consider the support as income. For example, if you have two different children from two different parents, the support received for the first child cannot be calculated as income when seeking child support from the other parent. Although it cannot be calculated as income, it unfortunately is not deductible, nor is it taxable. As far as using the children as dependents, if you are sharing physical custody, the parent with whom the children live for most time during the year is entitled to claim the children as dependents, unless both you and the other parent agree in a court order to split or alternate the years that the children are used as dependents. If this is the case, both parents would sign and file a special IRS form agreeing to a different arrangement each year. Spousal support, on the other hand, is treated differently. Spousal support is treated as income to the recipient spouse because the support is replacing or supplementing the income the recipient spouse would receive from working a normal job. Alternatively, the payor spouse gets to use the spousal support as a deduction in their tax returns. It is highly advisable that you seek the services of a very competent tax advisor and family law attorney to advise you regarding issues of spousal and child support when preparing and filing your tax returns.
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Do I need an attorney to handle my family law case?
Family law issues such as property disputes, custody, visitation, spousal and child support can be very complicated. An experienced family law attorney can advise you how a judge may divide your property and help you put your property settlement agreement into writing. An attorney can also help you understand your rights and duties concerning your children. Additionally, an attorney can advise you on how much money, if any, you should pay or receive for spousal or child support. Summary dissolutions are matters that an be handled by you without attorney representation in court. However, it is always advisable to inquire with an attorney to see if your case qualifies for a summary dissolution. Other cases are default matters that if the issues are limited such as you are seeking only a dissolution and no property issues are involved, then you can probably handle a default matter on your own. However, again, it is advisable to at least first speak with a family law attorney regarding your rights even in a default case.
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Are the rules in family court the same for registered domestic partners as they are for married couples?
Before and after the passing of the marriage laws for domesticated partners, the laws are basically the same for them as they are for heterosexual married couples. The same custody and visitation rules apply as do the rules for division of community and separate property. In sum, same sex couples who marry or become registered partners in California are entitled to the same rules and rights that all other couples are entitled to in family court.
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