Thursday, December 13, 2007

California Spousal Support

Spousal support is often awarded at an Order to Show Cause on a temporary basis, where one spouse is unemployed or earning significantly less than the other spouse. The theory behind these temporary orders is to assist the parties in reallocating the money they used for their living expenses now that they are no longer together. While there is no formal guideline for spousal support in use in most Northern California counties and courts, these jurisdictions are using the support calculators initially designed for child support in calculating temporary support. Keep in mind that the formula to calculate spousal support after a dissolution judgment has been entered is different than this temporary formula.

Spousal support is gender neutral. The driving force behind awarding support is the need of the spouse not if they are either the husband or the wife. For example, if you have a husband that worked at lower wages than the wife during the marriage, he may be entitled to spousal support.

At the order to show cause hearing for temporary support, the judge may not be immediately concerned about the employability of the spouse needing support. Instead, at this stage, the judge merely wants to preserve the status quo and provide the spouse in need of support with sufficient income for basic needs, consistent with the parties' life style.

At the trial of the dissolution, the California Family Code provides the judge with a long list of factors that are to be considered in determining the amount and duration of post judgment spousal support. This list includes such factors as the length of the marriage, the age of the parties, the parties health history, the parties' prior living standard, the extent to which the supported spouse contributed to the attainment of an education or professional license by the other spouse, the presence of young children in the home, and the employment opportunities available to the spouse requesting support.

In general, where the marriage has lasted more than 10 years, the court will, at the very least require a "reservation of jurisdiction." This means that, even if there is no current order for spousal support, a spouse requesting support will be permitted to come back to court at a later date should the need arise. In marriages of less than ten years, spousal support may be paid for approximately one-half of the length of the marriage.

However, each spousal support case is driven by the unique facts and circumstances found in the parties lives. For example, if the person receiving spousal support was a victim of domestic violence and the assailant was the other spouse, this event and the resulting injuries could affect the amount and duration of the support.

The Internal Revenue Code provides that all spousal support payments are tax deductible by the paying spouse and taxable to the recipient spouse as "ordinary income." For this reason, it is not uncommon for a carefully negotiated settlement to include the payment of a high amount of spousal support, because such a payment results in tax benefit to the higher earner spouse paying the support.

Medical benefits are another asset you must consider preserving as a part of the total spousal support plan.

Under Federal Law you might be entitled to keep your medical insurance benefits under your former spouse's group plan. The Consolidated Omnibus Budget Reconciliation Act of 1985 created what are commonly known as "C.O.B.R.A." benefits, which are available to the former spouses of people who work for employers who have 20 or more employees.

In general this law provides that employers must offer "continuation coverage" for the first three years after the termination of the marriage. The law further provides that the employer can charge the former spouse for this coverage, but the charge cannot be more than 2% greater than what is charged to employees.

After the three years have ended, the law states that the employer must offer a former spouse the right to purchase "conversion coverage", but there are no limits on how much the employer can charge for this coverage.

The former spouse does not have to pass a physical examination in order to obtain the continuation or conversion benefits. This is significant if you have any pre-existing conditions that might not be covered by another medical insurance carrier.

If you wish to have your C.O.B.R.A. benefits you must contact your former spouse's employer directly and request the appropriate forms. This is not a service that is customarily performed by the family law attorney. You must contact your former spouse's employer directly if you want to obtain these benefits.

The proper calculation and duration of spousal support demands a complete understanding of developing California law on this topic. For these reasons, it is always best to have an attorney represent you.

The Law Offices of Arlene D. Kock A Professional Law Corporation has its principal office in San Ramon California. Northern California Divorce Lawyer, Ms. Kock’s practice for the last 29 years covers all aspects of family law.

Saturday, October 13, 2007

Custody In California And Move Away Cases

California Family Law Code has a joint custody law that encourages judges to award joint legal custody to parents. Legal custody means that both parents have a right to make decisions concerning their children, such as education, medical treatment religious training and their overall welfare. Traditionally, research studying the effects of joint legal custody supported the contention that when both parents play a significant role in making these joint decisions, children do better. Many times communication between the parents for the benefit of the children improves as well.

The judge also has the power to award physical custody to one or both parents. Physical custody determines where the child primarily lives. Depending on the child’s age and overall circumstances, it is most common for the children to spend most of their time with one parent. The parent who does not have primary physical custody is usually granted secondary physical custody or visitation rights. The main theory behind this parenting arrangement is also based on family systems research spanning the last 25 years.

The premise behind this co-parenting arrangement rests on research establishing that kids do better in custody arrangements where they have a primary place to live and go to school. Keep in mind that any reasonable plan that the parents develop between themselves will be supported by the court. For example, if the parents both live in the same school district and their residences are a short distance from one another, a time share roughly equal might be achieved.

It is most common and traditional timeshare for a non custodial parent would be to have specified periods of time consisting of alternating weekends, one-half of the children's school vacations and holidays. In some cases, the parents agree to reasonable secondary physical custody or visitation rights, which mean that the parents collaborate on the times when the non-custodial parent will have the children. This less structured more open ended arrangement works well when the parents have a minimal amount of difficulty working with one another.

One parenting order that should be avoided is a visitation arrangement that says something to the effect that the parent with the lesser time share should just have “reasonable visitation” without any specific timetable or dates. If the parents have conflicts with one another, this kind of order could lead to a denial of visitation and might not be enforceable by the parent asking for visitation.

If you are fearful that the other parent may take a step in the future to move out of the area, you can request from the judge and in some cases, a judge will issue orders preventing either parent from changing the residence of the children from a specified geographical area. This kind of case is typically referred to as a “move away” case

Locally, it is not uncommon for a judge to restrain the parents from changing the residence of the children from what are referred to as "the ten Bay Area (northern California) counties." Such orders are common where both parents have a considerable amount of parenting time with the children and removing them from the metropolitan area would be disruptive to the children’s family, school and peer connections.

Because our local traffic and commute patterns have become so complex in the last 10-15 years, we are seeing more cases in court where the move may be denied even though the miles covered in the custody time share travel seems minimal. Each case must be looked at with its own unique set of circumstances when examining the possibility of a move to another area.

Over the last ten years, courts in California have been dealing with the right of a custodial parent to move with the children to another metropolitan area or out of state. The California State Supreme Court recently decided a case that seems to have settled this controversy. Under the new rule, the primary custodial parent generally has the right to decide where the children are to live, as long as he/she is not moving simply to deny the other parent access to the children.

The Law Offices of Arlene D. Kock A Professional Law Corporation has its principal office in San Ramon California. Ms. Kock’s practice for the last 29 years covers all aspects of family law.

Thursday, October 11, 2007

California Child Support Guidelines


In 1984 the California Legislature enacted the Agnos Minimum Child Support Standards Act. This law established minimum levels of child support.

Prior to the law being passed, support calculations in California had no clear framework thereby creating tremendous confusion for parents and the courts.

The statutes establishment of minimum levels of child support means just that. Factors based on such things as the child’s needs, hardships, special medical or educational concerns and costs may increase the support amount the judge may order. These support amounts may be above the statutory minimums. The Child Support Guideline established over 20 years ago was amended, effective July 1, 1992.

The key factors influencing the calculation of child support are: the percentage of visitation or custodial time share, the gross incomes of the parties and the tax advantages or disadvantages the paying and or recipient parent may have.

The child support calculator is driven by a complicated formula. For these reasons, software programs have been created to assist the parties, attorneys and judges in assessing the support amounts.


The Family Code requires that child support must be paid until the child becomes 18, unless the child has not graduated from high school, in which case the child support continues until the child has graduated high school or up to the age of 19, which ever occurs first. Presently, California law does not give judges the power to make a parent support a child beyond the age of 19, unless the child is physically or mentally disabled. However, parents can agree that child support can continue into college years. Such properly prepared agreements will be enforced by the Family Law Court.

Unless the custodial parent agrees otherwise, all child support is to be paid by a wage assignment. This means that the child support payments are to be deducted from the wages of the parent who is obligated to pay child support.

If the parent who pays child support hops jobs or is self employed, the court can create specific orders that the parent paying the support must maintain a bank account with a certain minimum amount of support held in the account in order that the receiving parent can automatically deduct the monthly support obligation.

Getting the correct support order and insuring regular payments of the court ordered amounts is best achieved with the assistance of a qualified family law attorney skilled in this area of law.

The Law Offices of Arlene D. Kock A Professional Law Corporation has its principal office in San Ramon California. Ms. Kock’s practice for the last 29 years covers all aspects of family law.