Articles Posted in Child Support

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Things often change after a divorce, whether it’s a new career, a new relationship, or a new place to live. Not all of those changes, however, are significant enough to justify tweaking a person’s spousal or child support obligations. As California’s Fourth District Court of Appeals recently explained, the burden is on the person asking for the modification to show that there’s been a material change in circumstances to justify it.

quarterHusband and Wife separated in 2009, ending their four-year marriage. Husband worked as a real estate broker during the course of the marriage, while Wife stayed home and cared for the couple’s two kids. The spouses eventually entered into a marital settlement agreement, resolving issues related to the divorce. They agreed to share joint custody of the children, and Husband pledged to pay Wife $3,500 per month in child support. The agreement stated that it was based on the assumption that Husband would be making about $260,000 per year and that Wife would have the kids about 80 percent of the time.

Husband went back to court about 10 months later, this time asking a judge to reduce his child support obligation. He explained that his income was now projected to be much less than expected. Husband said the $260,000 figure was based on his expected commission on the sale of a large promissory note. That sale fell through, according to Husband, and he wound up receiving a much smaller commission. Husband said he’d since taken a new job with an $80,000 annual salary.

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If you want a court to change an existing child or spousal support award, you have to prove that there has been a change of circumstances to justify it. This means presenting real evidence to the court, as California’s Sixth District Court of Appeals recently explained.

gavelMother and Father separated in 2011, following more than 18 years of marriage. They had three minor children at the time. When the couple eventually divorced, they entered into a stipulated agreement providing that Father would pay Mother more than $4,000 per month in combined spousal and child support. The agreement stated that Father was making about $12,300 per month as a systems engineer, while Mother was earning about $600 a month as a part-time French instructor and tutor.

Father went back to court less than a year later, asking a judge to reduce his support obligation. He explained that he was losing his job, which had been a three-year assignment, and was looking for a new gig. Father also said he’d lost about $63,000 in stock market investments the previous year. The trial court responded by reducing his support obligations to zero, at least on a temporary basis, and said it would retain jurisdiction to reconsider if and when Husband found a job. The court ordered both parents to make good-faith efforts to find work and to notify each other within 48 hours of landing a job.

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When a California court considers requests for child or spousal support, it usually takes a hard look at each spouse’s need and ability to pay. That means considering not only how much money each spouse is bringing in but also how much money they could be making. As the state’s First District Court of Appeals recently explained, judges have the power to “impute” income to one spouse in a divorce case, based on his or her earning capacity.

new-5-1474097Husband filed for divorce from Wife in August 2011, following a nine-year marriage in which the couple had four kids. One of the children suffered from a neurological disorder that the Court said prevented her from walking, talking, and using her arms. Wife left her job as marketing executive in 2005 in order to care for the child. Husband, who worked as an investment banker, supported the family financially.

A long, drawn-out legal battle ensued, during which a trial court several times altered the amount of spousal and child support that Husband was required to pay to Wife. In October 2013, the trial court granted in part Husband’s request to impute income to Wife. She had been working in an unpaid position with a start-up company for a year at the time. Wife said that she took the position to get experience after being out of the workforce and that she wasn’t drawing a salary because the business wasn’t yet profitable. Siding with Husband, however, the trial judge said “[t]he problem with not imputing an appropriate level of income to Wife is it distorts the financial reality of this situation.” The court imputed an annual salary of $75,000 to Wife and ordered Husband to pay her nearly $11,500 per month in spousal and child support.

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California’s First District Court of Appeals recently took on a divorce case involving former spouses who agreed to tie child and spousal support obligations to one spouse’s income. That’s not out of the ordinary, but the husband’s attempt to avoid those obligations altogether by pointing to his failing business left the Court scratching its head. That’s because the business losses were absorbed by the man’s father.

new-5-1474097Husband and Wife separated in 2011 after roughly 16 years of marriage in which they had at least two children. They entered into a marriage settlement agreement a year later, under which Husband pledged to pay Wife more than $5,000 per month in spousal and child support. The agreement indicated that Wife wasn’t able to work because of a serious medical condition, and the payments were intended to help her meet expenses. The payment amount was based on the assumption that Husband, who owned a construction business called PHS, would make $39,000 per quarter. It also required Husband to make additional payments each quarter, totaling 26.5 percent of any income in excess of the $39,000 mark. If his income wound up being less than $156,000 annually, Husband was entitled to recover overpayments during the year by reducing payments in the next year.

Husband paid himself an annual salary of $156,000, according to the Court. The only problem is that the business wasn’t profitable in 2012 and 2013, and Husband had to get $733,000 in loans from his father to keep the company afloat. Husband’s father also paid his mortgage, utilities, and insurance premiums at various times. The loans didn’t include a specific payment date, but Husband’s father told a trial court that he’d hoped to get the money back before he died. An accountant hired by the parties to determine Husband’s income ultimately concluded that the business’s net income was –$53,000 in 2012 and -$44,000 the following year.

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California courts look at a number of factors when deciding whether to order child support in a divorce case. Chief among those factors are the child’s best interests and the parents’ ability to pay, as the state’s Second District Court of Appeals explained in a recent case.

smurfy-workers-1183449Wife developed a number of serious health and medical problems during her 10-year marriage with Husband. She already suffered from epilepsy and was diagnosed with lupus, a degenerative disc disease called Lynch Syndrome, and related colon cancer while the couple was living in Ohio. She was nevertheless able to work intermittently as a bartender and house cleaner until her conditions forced her to quit. Wife was serving as an unpaid foster parent for two children when Husband filed for divorce in 2008.

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When a court decides whether and how much spousal and child support to award in a California divorce case, one of the first things that it looks at is the income that each of the divorcing spouses has coming in. It can’t be stressed enough how important it is for parties to a divorce case to provide a full and accurate record of their respective financial situations. A recent case out of the Fourth District Court of Appeals is another reminder that your opportunities to provide that information are limited.

new-5-1474097Husband and Wife were married more than five years and had three children before Husband filed for divorce in 2013. Husband, a surgeon, said he was making about $33,000 per month at the time. After Wife sought custody of the children and both child and spousal support, however, Husband said just one month later that he was actually bringing in about $18,000 per month. A trial court stuck with the original income estimate and ordered Husband to pay Wife nearly $6,000 per month in spousal and child support. It later raised the total support amount to more than $9,000 per month.

On appeal, Husband argued that the trial court incorrectly determined that his monthly income was more than $33,500, when it was actually about $32,000. The Fourth District affirmed the decision, finding in part the Husband hadn’t provided the financial information requested by the lower court. Even if the trial court had been wrong, however, the Court also said there was no reason to believe that it resulted in a miscarriage of justice. It said there was no indication that the trial court would have actually reduced the support payment if it had calculated Husband’s monthly income at $32,000, rather than $33,500.

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Here’s some advice for anyone considering or facing a divorce:  request that a court reporter attend any and all hearings and get transcripts of them. Without a record of the evidence presented and the reasons for a judge’s ruling on a particular issue, it is exceedingly difficult to appeal the decision.

gavel-2-1409592-mWife filed for divorce from Husband in August 2008, and a court dissolved the marriage roughly 16 months later. The former spouses continued to litigate a number of issues related to the divorce, however, including child custody, support and visitation. A trial court originally ordered Husband to pay more than $1,250 per month in child support. The court found that Husband had custody of the children about four percent of the time and that he had monthly earnings of about $4,250, while Wife had no monthly income. The court apparently imputed this income to Husband based on what he said was the amount of his monthly expenses. That appears to be because he didn’t provide any information about how much money he was actually bringing in at the time.

In May 2014, a trial court granted Husband’s request to reduce the child support payments, lowering the payments to $1,150. Although Husband said he was making $400 per month, the court noted that he didn’t change his living expenses amount. Instead he wrote “N/A” in a form asking for his monthly expenses. The court further noted that Husband’s custody of the kids had increased to about 10 percent per month and that Wife had since raised her net disposable income to about $2,300 per month.

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Many of the cases that we discuss on this blog concern issues related to whether or not a spousal or child support award should be modified based on changes in circumstances since the time that a court set the amount of the support. Such a change has to be substantial in order for a court to alter the support award. As California’s First District Court of Appeals recently explained, courts often look at whether the spouse seeking the change should have known about the circumstances at the time of the original award.

money-607703-mBefore Husband and Wife divorced in 2010, they entered into a marital settlement agreement under which they determined how their property would be split and custody over their two children would be handled. The couple agreed to share custody of the kids, and Husband agreed to pay Wife $11,000 per month in child support. When a trial court approved the agreement, it noted that Wife was bringing in about $900 per month and Husband was earning about $42,000 per month. The court also observed that Husband had agreed to pay Wife an extra $3 million over 10 years, as well as to transfer to her property worth more than $900,000, a life insurance policy, and a vacation timeshare.

Two years later, Wife returned to court to request that a trial judge increase the monthly support obligation. She argued that Husband’s income had increased since the time that the trial court approved the settlement agreement. Rejecting the motion, the trial judge said any increase in Husband’s income didn’t qualify as a change in circumstances warranting a change in the child support payments.

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Child support awards are intended to ensure that divorcing parents provide for essentials like food, shelter, clothing and health care for their kids. As we’ve written about in previous blog posts, support orders may also cover other areas, such as education expenses. As the name suggests, child support is generally designed to support kids. Nevertheless, as the state’s Second District Court of Appeals recently explained, there are certain instances in which a parent may be required to continue supporting a child through adulthood.

quarter-close-up-83888-mHusband and Wife divorced in 2003 and later entered an agreement, under which Husband pledged to pay child support for the couple’s then 11-year-old daughter. The child had been diagnosed with autism and the agreement stated that Husband would pay nearly $1,750 in support until Daughter “dies, marries, is emancipated or until the parties are no longer legally obligated,” by court order. Husband filed a motion seeking to stop the child support payments eight years later, arguing that he was no longer obligated to make the payments because Daughter was now an adult.

A trial court found that Daughter qualified for adult child support under section 3910 of the California Family Code. The law states that “[t]he father and mother have an equal responsibility to maintain, to the extent of their ability, a child of whatever age who is incapacitated from earning a living and without sufficient means.” Here, the court observed that Daughter needed around-the-clock care and would continue to require such care for the rest of her life. Indeed, the court said the evidence showed that Daughter was not able to function without constant adult supervision. A psychologist testified that Daughter would never be able to live on her own or support herself financially.

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Things often change for divorcing spouses over the years after they split. Life happens:  they may change jobs, move to different homes, remarry, and have more kids. Sometimes those changes will be significant enough to warrant altering arrangements made after the divorce, including the amount of any child support payments. As California’s Sixth District Court of Appeals recently explained, however, the person seeking the child support modification bears the burden of proving a sufficient change in circumstances.

toddler-and-mom-feet-1442011-mHusband filed for divorce from Wife in 2001, roughly a year after she gave birth to the couple’s first child. In 2012, a court ordered Husband to pay Wife nearly $1,300 per month in child support. The judge found that Husband was making approximately $16,000 per month in wages, salary, and other income. Husband later sought to reduce the payment amounts in January 2013, saying that he had since lost his job and that a bank had begun foreclosure proceedings on his home.

Husband said his current income was less than $7,000 per month, working for his own real estate company, and that he was thousands of dollars in debt and had $9,800 in monthly expenses. He also later admitted receiving $16,500 in severance payments from his former employer. Husband further argued that $2,250 per month in rental income that had been attributed to him was, in fact, money that went to his business. He said that money was used to pay business expenses and that he didn’t make any money off of the income.

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