(951) 463-5594
Moore Family Law Group is an accomplished legal team with a proven track record of protecting their client’s financial assets and best interests.
Spousal Support
What Is It?
First it is one of the most hotly contested, complex issues in California Family Law Court. The reason for this is two-fold- the first being that it can be a very complex legal issue. The other reason is that people feel very strongly about it one way or the other. The higher earner in the family generally wants to minimize the support obligation and the lower earner wants to maximize it.
Spousal support is where the court orders one spouse of the marriage to pay a determined amount of money to the other spouse on a monthly basis.
Spousal support is ordered in California when there is a discrepancy in the earnings of the spouses. For the most part (except for a very narrow, technical legal exception called putative spouse) spousal support is only an issue with people who were married, not if you had a child together or were together forever but did not legally marry.
What Are the Different Types of Spousal Support in California?
TEMPORARY SUPPORT – The term “temporary support” refers to any spousal support awarded while the divorce is pending. This means in between the time someone first files for divorce and when the divorce is finalized.
PERMANENT SPOUSAL SUPPORT – Permanent spousal support is the support that is contained in the final judgment. Permanent support can last for any amount of time. The word permanent does not refer to duration only finality in the fact that it’s what is written in your final judgment. Therefore, you can have “permanent spousal support” that lasts for one month, or “permanent spousal support that lasts until death or remarriage of the supported party and everything in between.
How Is Spousal Support Calculated in California?
Temporary support can be calculated using a software program approved by the state legislature. You input numbers for income and deductions and it calculates a number.
Permanent support is not as cut and dry. Spousal support in California is discretionary with the court. This means the Court can arrive at many different conclusions and they are all acceptable under the law. In determining permanent support, the court is not allowed to use the software and formula referenced above. The court must weigh the factors set forth in California Family Code 4320. Those factors are:
- Whether earning capacity of one each party is enough to maintain marital standard of living.
- Marketable skills of the supported party (and the job market for those skills etc.)
- Extent by which the supported party’s earning ability was stifled because of raising kids.
- Extent to which supported party helped the other party get their career (did the supported party put the other through school? Etc.)
- Ability to pay support (can the supporting party afford it?)
- Needs of each party (what does it cost to live for each person?)
- The obligations and assets of each party (does someone have a trust fund? Is someone else obligated to care for a family member etc.?)
- Duration of the marriage (long term -over 10 years vs. Short term- under 10)
- Ability of supported party to work (can the spouse work they just choose not to?)
- History of domestic violence (convictions between the parties for domestic violence)
- Tax consequence to the parties (what does the payment or receipt of support do to each party’s tax obligations and liabilities)
- Balance of hardships to each party (is there something about this situation that would make it such that the payor should pay less, or receiver should receive more because of some other hardship?)
- The goal that the supported party shall be self-supporting in a reasonable amount of time (if someone has not worked and made no efforts to have their own income the court will consider that)
- Anything else that the court thinks is just and fair to consider (and this means virtually anything else- which is why this issue is so discretionary).
Filing A Petition For Dissolution Of Marriage
From the get-go, filing for divorce is complicated. If you are considering divorce, it is important to be aware of the things involved in the process. California is a no-fault divorce state. This means that you don’t need to prove that your spouse is at fault. There is no need to justify your reasons for divorce.
However, it is important to remember that although there is no need to allege fault, it may be weighed when it comes to issues like child custody.
To formally begin the divorce proceedings, one spouse must file a Petition for Dissolution of Marriage. This is filed in the district court of the county where you or your spouse resides. The petition basically asks the court to allow the divorce. It identifies the spouses as the parties, where the person filing is the petitioner and the other is the respondent. It also identifies children born of the marriage as well as requests for settlement like housing, custody, financial arrangements, and so on.
Service
The respondent has the right to be notified of any legal action taken against him or her. So, once the petition is completed, the petitioner must serve a copy to the respondent. Upon proper service, the respondent has thirty days to respond.
In the event that no response is made, the petitioner may move for a default judgment. However, no judgment must be entered within six months of the date the response is served. This is called the cooling-off period, which gives the couple a chance to think things over and hopefully reconcile.
Automatic Temporary Restraining Orders (ATROS)
In the State of California, Temporary Restraining Orders are automatically initiated as soon as the Petition is filed. They are effective as to Respondent upon service. There is no need to apply for them and they remain in force until the court orders it is dissolved or a final judgment is entered in the divorce.
What Are ATROS for?
They are meant to protect the parties by preventing them from doing anything against the other out of spite or anger. These include:
- Barring either party from taking their children out of state without the written consent of the other party.
- Both parties are not allowed to sell or dispose of shared real or personal property. This includes money in shared accounts which must not be withdrawn and put into a separate account.
- Changes to insurance policies are prohibited.
- Each party is required to notify the other five days before making an expensive purchase. All extraordinary expenses incurred after the restraining orders have taken effect must be accounted for in court.
Other Temporary Orders
The court allows the parties to file for temporary orders within the mandatory six-month waiting period. These orders cover things like housing, financial arrangements, and custody/visitation up until the final judgment is entered.
Discovery
Discovery refers to the process where the parties request documents and information from each other. Discovery may be formal or informal. Informal discovery may be as simple as writing a letter to the opposing party and requesting a meeting in order to gather information. While this is the less expensive route, it may limit your access to information and is less likely to ensure cooperation.
Formal discovery involves several methods, the most common are:
- Interrogatories – the parties prepare written questions for the other to answer. Form Interrogatories and Special Interrogatories are prepared by the parties. Both are required to answer truthfully subject to penalty of perjury, within 30 days of receipt.
- Request for Admission – these ask the other party to deny or admit certain facts. If these are not denied or admitted within 30 days, they are considered admitted.
- Requests for Production of Documents or Things – these are written requests asking the other party to turn over particular documents or items. These may include tax returns, credit card statements, pay stubs, and so on.
- Depositions – this process is where a party or a witness is required to answer questions orally. This is not done in court but in less formal venues like an attorney’s office. The deposition is recorded by the court reporter and may be used as evidence in court.
It is at this stage where divorce proceedings get held up, especially if the parties have numerous shared assets.
Judgment
After all the processes have been completed and the six-month waiting period has elapsed, the parties are ready for settlement negotiations. The ease of arriving at the finalization where judgment is rendered depends on several factors. These include the intricacy of assets involved, the availability of materials during discovery, and the relationship between parties.
Once both sides settle on the final terms, the judge will sign the judgment, and the divorce is finalized. Should the parties not settle; issues may be litigated at trial.
Post-Judgment Modifications
Sometimes circumstances change and a party may request modifications to the judgment. This can be done subject to conditions set by law. Most of the time, these requests involve adjusting the financial arrangement or custody arrangement.
How Long Does A Divorce In California Take?
While it is mandatory that there is a six-month waiting period before a judgment may be entered, it does not necessarily mean that divorce is finalized within six months. A simple uncontested divorce may take six months but a contested divorce may take years. On average, divorce proceedings in California take 12-18 months.
Divorce can be a very painful time in one’s life, much like losing a loved one to death. It is an emotionally charged time, where anger, overwhelm, sadness, and frustration loom. On many occasions, one is faced with losing some of their assets, time with their children, some of their income, and having to change their lifestyle, in addition to the emotional pain. Don’t go through it alone, contact Moore Family Law Group to schedule a consultation and explore your options.