Family Law
Areas of Family Law:
Joan Maredyth is a certified family law specialist and Isaac Fischer will be seeking certification this year. Our office is experienced in handling all manner of family law matters, from divorces to hotly contested custody battles. In addition, our office can advice clients as to which manner of dispute resolution may be appropriate for a particular matter (these methods of dispute resolution are described below).
Getting a divorce can be a painful and emotional process. Our office can assist both by getting you through the legal process and with dealing with a difficult opposing party and/or opposing attorney. Many issues may be involved in a typical divorce proceeding including, child custody/support, spousal support, disposition of the family residence, retirement accounts and distribution of personal property and financial accounts.
Child support may be ordered during a divorce proceeding, after the divorce if finalized, or completely independant of any divorce proceeding (if the parties were never married but have children together). Child support is the amount of money the court orders one parent to pay the other parent every month to support the child or children. California uses a formula (called a "guideline") for figuring out how much child support should be paid in all cases. California child support guidelines are based on numerous factors, including the amount of time each parent spends caring for the child, each parent’s income (which is based upon an adjusted monthly gross income), the needs of the child and other issues. While the guidelines are precise, there are many factors that can affect the ultimate amount of support.
Maredyth and Fischer has represented clients in a wide variety of child support cases including enforcement cases, modification of support cases, collecting arrears and, of course, insuring that support is properly calculated and fair to our clients.
Child support payments are usually made until children turn 18 or 19 if they are still in high school full time, living at home and can't support themselves. Parents may agree to support a child longer. The court may also order that both parents continue to support a disabled adult child that is not self-supporting.
Understanding the nuances of how child support is calculated in California can often help either the payor or the payee benefit from child support litigation. At Maredyth and Fischer, we educate our clients in order to make the child and spousal support laws work for them. If you need to establish a support order, enforce an order, or if you have been served, contact a Maredyth and Fischer child support attorney today.
Child Custody
General California Child Custody Guidelines
Broadly, the California Family Code empowers the court, during the pendency of a marital action or at anytime thereafter, to make an order for the custody of a child during minority "that seems necessary or proper." [Ca Fam § 3022] However, in exercising their discretion under that broad umbrella, courts must be guided by several basic statutory principles. Chief among these policy considerations are the following two:
1. Safety & Welfare: The court's "primary concern" is to assure the child's health, safety and welfare. This codified policy is a companion to the Legislature's express finding and declaration that "the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child." [Ca Fam § 3020(a) (emphasis added); see also Ca Fam § 3044]
2. "Frequent and continuing contact" with both parents and shared parenting: Further, an appropriate custody/visitation award must take into account the codified policy "to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy" . . . except where the contact would not be in the child's best interest pursuant to Ca Fam § 3011 [Ca Fam § 3020(b) (emphasis added)]
Types Of Child Custody Arrangements
Sole Custody Orders
1. Exclusive custody ("legal" and "physical") to one parent: An exclusive custody order gives one parent primary physical control of the child, with the right to make decisions regarding the child's residence, health, education and welfare. The noncustodial parent has secondary visitation rights as ordered by the court [Ca Fam §§ 3006 & 3007]
2. Sole Physical Custody: A parent may be granted exclusive physical custody without exclusive legal custody. This means the child resides with and is supervised by one parent, subject to the other parent's visitation rights; but the custodial parent does not have sole decision-making power regarding other matters affecting the child. [Ca Fam § 3007]
3. Sole Legal Custody: Conversely, a parent may be awarded the exclusive right and responsibility to make decisions relating to the child's health, education and welfare; but unless exclusive physical custody is also granted, that parent does not have sole control over the child's residence and supervision. [Ca Fam § 3006]
Joint Custody Orders
1. Pure Joint Custody: Under a "pure" joint custody plan, neither parent has sole physical or legal custody; both have authority to control and supervise the child, and the child's physical presence is shared. [Ca Fam § 3002]
2. Joint Legal Custody: Joint legal custody means that both parents share the right and responsibility to make decisions regarding the child's health, education and welfare. [Ca Fam § 3003]
3. Joint Physical Custody: A joint physical custody award means each parent has "significant periods" of physical custody. Physical custody must be shared in such a way as to assure the child "frequent and continuing contact with both parents," subject to Ca Fam §§ 3011 and 3020; but that does not mean the child's time must be equally divided with each parent (i.e., one parent can still be the "primary caretaker"). [Ca Fam § 3004]
4. Divided Or "Split" Custody: These are terms of art not defined by the Code. In its commonsense usage, "divided" custody generally means each parent is custodian of the same child for different finite periods of time, with cross rights of visitation. A "split" custody arrangement refers to varying parenting plans for several children, where each parent has custody of at least one child of the marriage at all times (e.g., father awarded custody of son, mother awarded custody of daughter) and both have visitation rights as to the noncustodial child.
Nonparent Custody
Subject to strict statutory standards (Ca Fam § 3041), custody may be granted to a nonparent (who will have exclusive responsibility for the child's care and control); the parents, at most, will have reasonable rights to visitation.
Factors Considered By The California Court In Making Custody Awards In Contested Cases
The Code makes clear that custody and visitation determinations are to be made from the standpoint of the child's best interest (consistent with the § 3020 policies.. [Ca Fam §§ 3011, 3020, 3040, 3041] The equities, feelings and desires of the contesting parties are only a factor to the extent they affect the child's best interest.
In making the "best interest" determination, the court can consider any "relevant" factors. [Ca Fam § 3011] The court "must look to all the circumstances bearing on the best interest of the minor child"
However, among all the relevant factors, trial courts must consider the following (Ca Fam § 3011):
1. Child's Health, Safety, And Welfare: A "best interest" determination must take into account the child's health, safety and welfare. [Ca Fam § 3011(a); see also Ca Fam § 3020(a),(c)]. This is a paramount policy concern.
2. History Of Physical Abuse: The court must also consider any history of abuse by one parent or any other person seeking custody against (Ca Fam § 3011(b)) the child, the person seeking custody, or the current spouse.
As a prerequisite to consideration of allegations of physical abuse, the court may require "substantial independent corroboration" . . . including, but not limited to, written reports by law enforcement agencies, child protective services, etc.
3. Certain violent crimes restrict custody or unconditional visitation awards
A. Registered Sex Offender Or Child Abuse Conviction: Neither custody nor unsupervised visitation may be awarded to a parent or any other person who either (i) is required to be registered as a sex offender under Ca Penal § 290 where the victim was a minor, or (ii) has been convicted of specified child abuse offenses (under Ca Penal §§ 273a, 273d or 647.6) . . . unless the court finds there is "no significant risk to the child" and states its reasons in writing or on the record. [Ca Fam § 3030(a)]
B. Child Conceived By Rape: Without exception, no person convicted of rape pursuant to Ca Penal § 261 may be granted custody or visitation with respect to a child conceived by that act of rape. [Ca Fam § 3030(b)]
C. First Degree Murder Of The Other Parent: Neither custody nor unsupervised visitation may be granted to a person convicted of first degree murder (Ca Penal § 189) of the child's other parent . . . unless the court finds there is no risk to the child's health, safety and welfare and states its reasons in writing or on the record. [Ca Fam § 3030(c)]
D. History Of Drug And Alcohol Abuse: In determining the child's best interest, trial courts must also consider either parent's "habitual or continual illegal use of controlled substances" (as defined in Ca Hlth & S § 11000 et seq.) or "continual abuse of alcohol." [Ca Fam § 3011(d)]
Before considering allegations of a parent's drug or alcohol abuse, the court may require "independent corroboration"--such as written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical and rehabilitation facilities, or other organizations providing drug and alcohol abuse services. [Ca Fam § 3011(d)]
4. Stability And Continuity Of Environment: Although not reduced to express statutory terms, a significant component of the "best interest" assessment is the policy goal of protecting a stable custody arrangement. "As we have repeatedly emphasized, the paramount need for continuity and stability in custody arrangements--and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker--weigh heavily in favor of maintaining ongoing custody arrangements." [Marriage of Burgess (1996) 13 Cal.4th 25, 32-33, 51 Cal.Rptr.2d 444, 449-450 (emphasis added); see Burchard v. Garay (1986) 42 Cal.3d 531, 538, 229 Cal.Rptr. 800, 804-805]
5. Separation Of Siblings: California policy affords strong protection to sibling relationships. Absent compelling circumstances, such as extraordinary emotional, medical or educational need, an order separating siblings between custodial households ordinarily will be reversed as detrimental to the children's best interest. [Marriage of Williams (2001) 88 Cal.App.4th 808, 814-815, 105 Cal.Rptr.2d 923, 927-998]
6. Child's Wishes: The court must "consider" and give "due weight" to the wishes of children who are of "sufficient age and capacity to reason so as to form an intelligent preference as to custody." [Ca Fam § 3042(a); see also Ca Fam § 3030(c)(1)].
Note: this is, by no means, a complete listing of all of the factors the court may decide to take into consideration in making a custody award. The court has very broad discretion to consider any evidence relevant to the "best interests of the child."
California Child Custody Procedure:
The parties may - and are encouraged to - enter into a written stipulation (agreement) on custody issues.If the parties cannot agree, custody orders may be made at any time after the filing of an underlying divorce, paternity, or domestic violence action and may be modified at any time until the chilf(ren) turn eighteen. In contested cases, they are most commonly made:
- At the time of the filing of the initial documents in a "Temporary Restraining Order"
- Within a few weeks of the filing at a hearing on application for "Order To Show Cause"
- At the time of trial
Modification Of California Child Custoey Orders:
Child custoey orders may be modified at any time before they terminate as long as the party moving for the modification can show that there has been a change in circumstances affecting the welfare of the child(ren) since the last order.
Such changes in circumstances include (but are by no means limited to):
- Change in residence of one of the parents. (This may require a motion for a "move-away order")
- The desire of an older child to increase or decrease visitation.
- Evidence of abuse of a child.
- Alteration of the child(ren)'s school schedule
Child Support: Child support should be considered anytime custody is at issue. Please see the discussion above for more information about child support [link].
Restraining Orders
Available Orders In Domestic Violence Cases
Whether actual or threatened acts of domestic abuse occur within or without a marital relationship, "protective orders" identical to those available in a marital proceeding may issue ex parte and/or on noticed motion in an independent action commenced under the Domestic Violence Prevention Act (DVPA, Ca Fam § 6200 et seq.).
The DVPA is intended to prevent the recurrence of acts of domestic violence and to provide for a separation between the parties involved for a period of time sufficient to enable them to seek a resolution of the causes of the violence. [Ca Fam § 6220]
An alleged domestic violence victim is a "protected person" under the DVPA and thus entitled to the benefit of a DVPA order only if he or she fits one of the descriptions contained in Ca Fam § 6211 (providing that domestic violence is "abuse" perpetrated against specified classifications of persons).
Categories Of Protected Persons
The person seeking a DVPA remedy as a "protected person" must fall into one of the categories described in Ca Fam § 6211:
Spouse: A spouse or former spouse. [Ca Fam § 6211(a)]
Cohabatant: A "cohabitant" or former cohabitant--meaning a person who regularly resides (or formerly regularly resided) in the household. [Ca Fam § 6211(b);Ca Fam § 6209 (defining "cohabitant" under DVPA)]
Dating Or Engagement Relationship: A person with whom the respondent (alleged perpetrator) is having or had a "dating or engagement relationship." [Ca Fam § 6211(c)] As defined by the DVPA, a "dating relationship" means "frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement independent of financial considerations." [Ca Fam § 6210]
Coparent: A person with whom the respondent (alleged perpetrator) has had a child . . . where, pursuant to the Uniform Parentage Act, the male parent is the presumptive father of the child of the female parent. [Ca Fam § 6211(d)]
Child: A child of a party or a child who is the subject of a Uniform Parentage Act action, where the presumption applies that the male parent is the father of the child to be protected. [Ca Fam § 6211(e)]
Blood Relatives: Any other person related by consanguinity or affinity within the second degree. [Ca Fam § 6211(f)]
Showing Of Abuse Required
Protective and other "domestic violence prevention" orders (Ca Fam§ 6300 et seq.) may issue, with or without notice, to prevent a recurrence of domestic violence pursuant to affidavit demonstrating, to the court's satisfaction, "reasonable proof of a past act or acts of abuse." [Ca Fam § 6300]
"Abuse" within the meaning of the DVPA means either:
- intentionally or recklessly causing or attempting to cause bodily injury (Ca Fam § 6203(a)); or
- sexual assault (Ca Fam § 6203(b)); or
- placing a person in "reasonable apprehension" of imminent serious bodily injury to that person or another (Ca Fam § 6203(c)); or
- engaging in any behavior that has been or could be enjoined pursuant to Ca Fam § 6320; (Ca Fam § 6203(d)).
Thus, the requisite "abuse" need not be actual infliction of physical injury or assault.
Orders Available
The Ca Fam § 6218 protective orders may include any or all of the following (Ca Fam § 6218):
Temporary Custody: During the pendency of a proceeding where the custody of a minor child is in issue (including domestic relations status actions, Ca Fam § 3120 actions for exclusive custody, DVPA actions provided a parent-child relationship has been established, UPA actions and Ca Fam § 17404 county agency support enforcement actions), the court may make whatever temporary custody order "seems necessary or proper." [Ca Fam §§ 2045(b), 2047, 3021, 3022, 3060 et seq., 6323(a)]
Temporary Child Visitation: The court may also issue a temporary order determining the right of a party to visit a minor child "on the conditions the court determines." [Ca Fam §§ 2045(b), 2047, 6323(a)(1)]
Child Abduction Prevention Orders: The Family Code identifies several factors that may signal a risk one parent might "abduct" the minor children to another county, state or country. If it becomes aware of facts indicating such a risk, the court has a duty to determine whether orders should be entered to prevent the threatened abduction (move-away or travel restrictions, posting a bond, even turning in passports, etc.). [See Ca Fam § 3048(b)]
Protective Orders Where Child Sexual Abuse Is Alleged: If child sexual abuse is alleged during a custody proceeding and the court is concerned about the child's safety, the court has discretion to take "any reasonable temporary steps" deemed appropriate under the circumstances to protect the child's safety until an investigation can be completed. [Ca Fam § 3027(a)] In such cases, the court may request an investigation by the local child welfare services agency pursuant to Ca Wel & Inst § 328; and may be required to order a custody evaluation pursuant to Ca Fam § 3118. See Ca Fam §§ 3027(b), 3118)
Assaultive Conduct & Property Destruction: An order enjoining a party from "molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members." [Ca Fam §§ 6218(a), 6320, 6340(a)]
Dwelling Exclusion: An order excluding a party from "the family dwelling, the dwelling of the other party, the common dwelling of both parties, or the dwelling of the person who has care, custody, and control of a child to be protected from domestic violence" for whatever period and on whatever conditions the court determines, "regardless of which party holds legal or equitable title or is the lessee of the dwelling." [Ca Fam §§ 6218(b), 6321(a), 6340(a)]
"Effectuating" Order: An order enjoining a party from any other specified behavior that the court deems necessary "to effectuate" § 6320 (assaultive conduct/harassment) or § 6321 (dwelling exclusion) orders. [Ca Fam §§ 6218(c), 6322, 6340(a)]
Firearms Restraining Order: A broad restraining order concerning the possession and acquisition of firearms automatically takes effect by operation of law when the court issues a Ca Fam § 6218 domestic violence protective order: A person subject to a Ca Fam § 6218 protective order is prohibited from owning, possessing, purchasing, receiving, or attempting to own, possess, purchase or receive, any firearms for so long as the protective order remains in effect.
Wiretap Order: A judge issuing a domestic violence restraining order may, upon the victim's request, also include a provision permitting the victim to record any prohibited communication made to him or her by the perpetrator. Absent such an order, the surreptitious recording, although made to document evidence of a crime, could run afoul of state and federal wiretap and invasion of privacy laws. [Ca Penal § 633.6(a)]
Restitution Orders: In domestic violence situations, after notice and hearing, the court may issue the following compensatory monetary orders--but not including "damages for pain and suffering" (Ca Fam § 6342(a),(b)):
Payment Of Victim's Damages: The Court may make an order requiring the respondent perpetrator to pay restitution to the applicant party for loss of earnings and out-of-pocket expenses--including, but not limited to, medical care and temporary housing expenses--incurred as a direct result of the abuse inflicted by the respondent or any actual physical injuries sustained from the abuse. [Ca Fam § 6342(a)(1)]
Damages To The State: The Court may make an order requiring the respondent perpetrator to pay restitution to any public or private agency for its reasonable cost of providing protective services to the other party as a direct result of the abuse inflicted by the respondent or any actual injuries sustained therefrom. [Ca Fam § 6342(a)(3)]
Payment Of Damages Caused By Unwarranged Application: If the court finds at a noticed hearing that the ex parte protective or domestic violence prevention order issued on "insufficient" supporting facts, an order requiring the party who obtained the order to pay restitution for out-of-pocket expenses incurred by the other party (respondent) as a result thereof. [Ca Fam § 6342(a)(2)]
Batterer's Program: Also, in domestic violence situations, and after a noticed hearing, the court may order the restrained person to participate in a batterer's program approved by the probation department, which may include lectures, classes, group discussions and counseling directed at stopping domestic violence (see Ca Penal § 1203.097(c)--batterer's program standards). [Ca Fam § 6343(a)]
Additional Emergency Protective Orders: Protective orders may be obtained ex parte on an emergency basis (so-called "emergency protective orders") in cases of imminently threatened domestic violence, child abuse and/or child abduction, stalking, or elder or dependent adult abuse. [Ca Fam § 6240 et seq.; Ca Penal § 646.91; see Ca Fam § 6241. These include
Harassmant/Stalking Orders: The Court may issue a harassment protective order (as described in Ca Civ Pro § 527.6) or a workplace violence protective order (as described in Ca Civ Pro § 527.8) as necessary to prevent the occurrence or reoccurrence of "stalking" (defined to mean willfully, maliciously and repeatedly following or harassing another and making a "credible threat" with intent to place that person in reasonable fear for his or her safety or the safety of his or her immediate family; see Ca Penal § 646.9) (Ca Fam § 6274; Ca Penal § 646.91)
Temporary Care Of Children: An order determining the temporary care and control of any minor child of the endangered person and the person against whom the order is sought (Ca Fam § 6252(b))
Procedure
Ex Parte Orders
The procedure to obtain domestic violence restraining orders involves at least 2 steps. First "ex parte" orders are obtained on very short notice. At the "ex parte" hearing temporary orders may be issued by the Court which last until the next "Order To Show Cause" hearing which must be held no more than 21 days from the issuance of the first order.
"Ex parte" orders are granted on one party's application and without "formal" notice to the other party or opportunity to be heard in opposition. For that reason, the class of orders obtainable ex parte is narrowly circumscribed (primarily limited to "protective orders" and "domestic violence prevention orders," and, necessarily, such orders are of very limited duration.
Since due process requires reasonable notice and an opportunity to be heard, ex parte orders are issued with caution and only under extraordinary circumstances. Specifically, no order governed by Ca Fam § 240 et seq. may be granted on an ex parte basis unless it appears from facts shown in the application for the order (or by attached affidavit) that "great or irreparable injury would result to the applicant before the matter can be heard on notice." [Ca Fam § 241 (emphasis added); see also Ca Rules of Court Rule 379(g) (requiring "affirmative factual showing" of "irreparable harm, immediate danger, or any other statutory basis for granting ex parte relief")]
Ex Parte Hearing Notice Requirements: Although ex parte orders issue without a hearing on formal noticed motion, the California Rules of Court (and all local court rules or policies) require some form of advance notice of the intent to present an ex parte application (Ca Rules of Court Rule 379(a),(b),(e)).
Under Rule 379, absent a showing of exceptional circumstances, the applicant must notify all parties no later than 10:00 a.m. the court day before the ex parte appearance. [Ca Rules of Court Rule 379(b)] However, not all family courts follow Ca Rules of Court Rule 379 and, in those courts, the minimum notice period may be different.
Issuance By The Court
The application, TRO (or Temporary Orders) and notice of hearing/OSC forms (along with the applicable filing fee) must be presented to the court where the underlying action is pending (or, if no pending proceeding, to the superior court of the county of proper venue per Ca Civ Pro § 395(a)).
The court must act on the ex parte application--either issuing or denying the requested order--on the same day the application is submitted. [Ca Fam §§ 246, 6326]
Service Of The Order
The ex parte order takes effect only upon proper service on the party to whom the order is directed.
The time-frame for service depends on whether the temporary restraining order(s) issued with or without notice:
• If the order(s) issued without notice pending the hearing, the above documents must be served on the respondent at least five days before the hearing. [Ca Fam § 243(b)]
• If the order(s) issued with notice pending the hearing, the above documents must be served on the respondent "at least 15 days before the hearing." [Ca Fam § 243(c) (emphasis added)]
Proof of service in accordance with § 243 (above) must be made to the court's satisfaction before the hearing may proceed. If service has not properly been effected and the applicant is not ready to proceed on the hearing date, the court "shall dissolve" the orders. [Ca Fam § 243(d)]
When the ex parte papers are the first papers served on respondent in the action, service must be effected in a manner authorized for initial service of process. In any event, temporary restraining orders must be served by personal service.
A neutral process server or law enforcement officer (below) should be used. Per Ca Civ Pro § 414.10, the papers cannot validly be served by a "party" to the action; and for purposes of domestic violence TROs, "party" includes any nonparty named as a protected person in the order.
Responsive Declaration
The restrained party's responsive declaration must be served on the applicant party at least two days before the hearing (otherwise, the applicant may be entitled to a continuance to prepare to meet the responsive allegations). [Ca Fam § 243(g)]
The Order To Show Cause Hearing
Nothing in the Code requires an appearance by the responding party as a prerequisite to granting the requested orders (i.e., making the ex parte orders "permanent"). If the responding party (personally or through counsel) fails to appear at the hearing (or to file an answer/responsive declaration), the requested relief may be entered by default.
On the other hand, the Code expressly states that "when the matter first comes up for hearing, the applicant must be ready to proceed." [Ca Fam § 243(a)]
The court may take testimony of the parties or make its decision solely on the basis of the papers filed by the parties.
Findings And Order Of The Court
The Court may issue an order only if the judicial officer finds that:
• Reasonable grounds have been asserted to believe there is an immediate and present danger of domestic violence, child abuse, child abduction, stalking (as defined in Ca Penal § 646.9), or elder or dependent adult abuse (as defined in Ca Wel & Inst § 15610.07); and
• An emergency protective order is necessary to prevent the occurrence or reoccurrence of domestic violence, child abuse, child abduction, stalking, or elder or dependent adult abuse. [Ca Fam § 6251(a) & (b); Ca Penal § 646.91(d)]
Service And Filing Of The Order
The orders must be personally served to be effective.
To ensure effective statewide enforcement, domestic violence protective orders (including modifications, extensions and terminations thereof) must be registered with the State Department of Justice (DOJ) through the California Law Enforcement Telecommunications System (CLETS). The DOJ is required to maintain a "Domestic Violence Restraining Order System" and to make all information concerning such restraining orders (whether or not served upon the respondent) available to court clerks and law enforcement personnel through computer access. Electronic transmission of the pertinent information is the county's responsibility. [See Ca Fam §§ 6380(a),(e) & (f), 6382]
Duration Of Orders
Domestic violence restraining orders are deemed to be of five years' duration if the expiration date is not stated on the face of the order form. [Ca Fam § 6345(c)]
Guardianships and Conservatorships
Guardianship:
A probate guardianship is available when someone other than a parent takes custody of a minor. If the Court grants a guardianship, the guardian has legal rights to place the child in school, obtain medical care for the child, and maintain health insurance for the child through the guardian's employment. The Guardian will also be eligible to apply for non-needy relative assistance (what is non-needy relative assistance – link) The Court can issue specific orders determining visitation rights of either or both parents. However, in order to obtain a guardianship order, it must be proved that it would be to the child's detriment to place him or her in the custody of a parent. This type of proceeding is appropriate where both parents are dead, incarcerated, or otherwise incapable of caring for the child.
Conservatorship:
A probate conservatorship is available when it becomes necessary for a person over the age of 18 to have someone else become responsible for that person's physical care, financial affairs, or both. Sometimes a long-term care facility will require establishment of a conservatorship, especially if the conservatee does not have a spouse to make decisions for him or her. The law is protective of an adult's right to make personal decisions, so strong evidence is required in order to establish a conservatorship.
Spousal Support Modifications
A spousal support award is not mandatory in dissolution or legal separation proceedings in California. Quite the contrary, courts have discretion (within statutory parameters) to deny spousal support altogether or to limit it in an amount and duration that reflects the ability of both parties to provide for their own needs.
The propriety of a California alimony award (whether to order it and, if so, its terms) is judged broadly by the parties' "circumstances" in reference to the standard of living established during their marriage and their respective needs and abilities to pay. [Ca Fam §§ 4320, 4330(a)]
The court is bound to consider 14 statutory factors in making a California spousal support order (Ca Fam § 4320(a)-(n)). But so long as the statutory factors are considered and weighed (as applicable in a given case), the ultimate decision--as to amount, duration and whether to retain spousal support jurisdiction--rests within the court's broad discretion.
Whereas child support awards facilitate a uniform purpose (significantly, that children share in their parents' standard of living, spousal support necessarily serves varying functions, depending on the parties and the underlying facts and circumstances. For that reason, the Legislature has not codified any particular purpose of the award.
In evaluating the parties' respective needs and abilities to pay, the court cannot engage in speculation. Its order must reflect the present facts and circumstances, based on evidence in the record and inferences reasonably drawn therefrom at the time of the hearing. "[A]n order for spousal support must be based on the facts and circumstances existing at the time the order is made." [Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 575, 7 Cal.Rptr.3d 594, 595]
Relevant Factors In Making California Spousal Support Orders:
In exercising their broad discretion on the question of spousal support, trial courts must consider and weigh several factors prescribed by Ca Fam § 4320. "Permanent" spousal support orders that do not reflect an independent consideration and weighing of all of the statutory circumstances (as applicable to the particular case) are reversible for abuse of discretion.
Note: These principles do not apply with regard to temporary orders issued at the outset of the action because temporary orders do not have the same purpose as perminent orders.
Because the factual and equitable circumstances in each case are unique, the § 4320 factors necessarily cannot be given equal weight from case to case. Determining the weight to be given each of the statutory factors in a particular case, in order to arrive at a "just and reasonable" support award (Ca Fam § 4330(a)), is "extraordinarily difficult." It is a matter committed to the trial court's sound discretion.
In approaching the weighing process, courts must begin with the general premise that the decision to award spousal support and, if so, the amount and duration, must be based on the standard of living established during the marriage. [Ca Fam § 4330(a)]
Additional specific circumstances courts must consider in the spousal support weighing process are prescribed by Ca Fam § 4320, as developed in the sections below. [See Ca Fam § 4320--"In ordering spousal support . . . , the court shall consider all of the following circumstances . . .":
1. Ability to maintain marital standard of living in light of earning capacities: The extent to which the parties' respective earning capacities are sufficient to maintain the standard of living established during the marriage (Ca Fam § 4320(a)).
2. Contributions to other spouse's education, training, etc.:
The extent to which the supported spouse contributed to the other spouse's attainment of an education, training, career position or license. [Ca Fam § 4320(b)] Section 4320(b) is a companion to Ca Fam § 2641, which creates a right of reimbursement for community contributions to one spouse's education or training that "substantially enhances" the spouse's earning capacity.3. Supporting spouse's ability to pay: The supporting spouse's ability to pay spousal support, taking into account his or her earning capacity, earned and unearned income, assets, and standard of living. [Ca Fam § 4320(c)]
Note: A spousal support order must be consistent with the supporting spouse's ability to pay as determined by his or her circumstances at the time of the support hearing--i.e., the obligor's present (not past or future) circumstances (current income/cash flow, assets, earning capacity, etc.) control.
4. "Needs" in light of marital standard of living: The needs of each party based on the standard of living established during the marriage. [Ca Fam § 4320(d)] "Need" includes more than "bare necessities of life." But § 4320(d) expressly codifies well-established case law consensus that "need" must also be judged in terms of the parties' station in life during marriage and before separation.
5. Parties' assets and debts: The parties' respective assets and obligations, including the separate property of each. [Ca Fam § 4320(e)] Thus, aspouse's separate estate (including assets allocated to each as a result of the community property division)--and the reasonable income potential therefrom--may require the "withholding" of support altogether or a termination of previously-awarded support. [Ca Fam § 4321(a)]
6. Duration of marriage. [Ca Fam § 4320(f)] The length of the parties' marriage bears both on the "need" for support (whether it should be ordered) and on the amount and duration. The longer a spouse has been out of the job market on account of the marriage, the stronger the case for granting support; by the same token, a relatively short marriage can, depending on the other § 4320 factors and the "totality of the circumstances," offset alleged "need" and justify a lower level of support and/or a shorter support term.
7. Employability of custodial spouse vs. impact on children: The ability of the supported spouse to engage in gainful employment without interfering with the interests of dependent children in his or her custody. [Ca Fam § 4320(g)] Section 4320(g) recognizes the overriding public policy concern for the welfare of the parties' minor children. Theoretically, e.g., weighing all relevant circumstances, the needs of young children may justify indefinite spousal support to a custodial parent even after a relatively short marriage.
8. Age and health of the parties. [Ca Fam § 4320(h)] On balance and after weighing all of the § 4320 factors, age and health may warrant either an extension or withholding of support. Age and health considerations are also particularly relevant to the question of duration of support.
9. History of domestic violence: Documented evidence of any history of domestic violence (as defined in Ca Fam § 6211) between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party. [Ca Fam § 4320(i)]
10. Tax consequences: The immediate and specific tax consequences of spousal support to each party (e.g., who pays the taxes, who gets the deduction, what effect on net income). [Ca Fam § 4320(j)]
11. Relative hardships: "The balance of hardships to each party." [Ca Fam § 4320(k)] This factor seems to underscore the court's obligation to consider and weigh all of the § 4320 circumstances in determining the appropriate amount and duration of spousal support.
12. Goal of self-support: "The goal that the supported party shall be self-supporting within a reasonable period of time." [Ca Fam § 4320(l) (e)] Except in marriages of long duration (as described in Ca Fam § 4336, a "reasonable period of time" within which to achieve the goal of self-support "generally shall be one-half the length of the marriage." [Ca Fam § 4320(l)]
13. Spousal abuse conviction (mandatory factor for support reduction/termination): The criminal conviction of an abusive spouse is a mandatory factor to be considered in making a reduction or termination of spousal support in accordance with Ca Fam § 4325. [Ca Fam § 4320(m)]
14. Other "just and equitable" factors: "Any other factors the court determines are just and equitable." [Ca Fam § 4320(n)] This final factor is a "catch-all," clarifying the court's authority to consider any other circumstances, although not expressly codified, bearing on the propriety of awarding support and, if so, its amount and duration.
Modification Of Spousal Support Orders
If the supported party is no longer in need, or a detrimental change in the obligor party's needs or ability to pay outweighs the other's need for support, proceedings to terminate (or reduce) support can be brought on the basis of "changed circumstances".
Further, provided the obligee was aware of an expectation that he or she become self-supporting (or reasonably endeavor to contribute to his or her support), support might be terminated on the basis of the obligee's failure to make good faith efforts toward self-sufficiency within a reasonable period of time. [See Ca Fam §§ 4320(l), 4330(b)]
Moreover, in some cases, a modification order terminating open-ended support may even be warranted where, after considering and weighing the then-applicable Ca Fam § 4320 factors, the court deems it "just and equitable" to do so despite the absence of factually changed circumstances. [Marriage of Baker (1992) 3 Cal.App.4th 491, 494, 4 Cal.Rptr.2d 553, 554]
Termination Of Spousal Support Orders
a. Fixed-term orders: Spousal support orders for a fixed duration terminate at the end of the period specified in the order unless the court retained jurisdiction in its most recent order to extend the obligation. [Ca Fam § 4335]
However, except upon the parties' written agreement to the contrary or a court order terminating support, the court retains spousal support jurisdiction indefinitely where the marriage has been of "long duration."
b. Contingent orders: An obligation to pay spousal support for a contingent period of time terminates on the happening of the specified contingency. [Ca Fam § 4334(a)]
c. Remarriage/death: Unless the parties have "otherwise agreed" in writing, a court-ordered spousal support obligation terminates upon either party's death or the supported party's remarriage. [Ca Fam § 4337]
California Spousal Support Procedure:
The parties may - and are encouraged to - enter into a written stipulation (agreement) on spousal support issues.If the parties cannot agree, visitation orders may be made at any time after the filing of an underlying divorce, paternity, or domestic violence action and may be modified at any time until the chilf(ren) turn eighteen. In contested cases, they are most commonly made:
- At the time of the filing of the initial documents in a "Temporary Restraining Order"
- Within a few weeks of the filing at a hearing on application for "Order To Show Cause"
- At the time of trial
California Guidelines for Spousal Support
Most people are often eager to resolve their divorce cases at all costs and, in their rush to resolve spousal support issues, they agree to unfavorable terms that will have a HUGE financial impact on them for years to come.
In many cases, spousal support is the largest asset that is being awarded. Yet, while divorcing spouses may fight bitterly over home equity and the equity in businesses, they do not realize how large an asset -- or obligation -- a spousal support award can be.
For example, if a supporting spouse is ordered to pay $4,000 a month for a ten-year period that amounts to a $400,000 award. Of course, there are tax ramifications to spousal support, but the bottom line is: It pays to be VERY careful when negotiating or litigating your spousal support order.
To further complicate matters, if you do not negotiate or litigate the best possible terms in your initial spousal support, it will most likely be very difficult to come back to court at a later date to obtain better terms.
It is therefore very important that you not only obtain the best possible terms in your initial order, but also create an “exit strategy” so that you can come back to court at a later date and request a modification.
Since spousal support orders can have such a long term impact on your finances, it is crucial that you find an experienced lawyer who can help you obtain the best possible terms when establishing the initial support order.
Establishing Spousal Support in California
Under California spousal support law, spousal support may be “permanent” or temporary. Permanent spousal support may be ordered in marriages of long duration (generally ten years or more). In short term marriages (less than ten years); support is generally payable for one half the duration of the marriage.
In making an initial order, the court must consider the following factors: The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage; the marketable skills of the supported party; the extent to which the supported party's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties; and the extent to which the supported party contributed to the attainment of an education, career position or a license by the supporting party.
In addition, the court must also consider: the obligations and assets, including the separate property, of each party; the duration of the marriage; the ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party; the age and health of the parties; the degree to which the supported party shall be self-supporting within a reasonable period of time; and other factors the court determines are just and equitable.
Considerations on Determining Spousal Support
When you initially negotiate or litigate a spousal support order, it is important to ask the court to make specific findings regarding each of these factors.
Standard of LivingFor example, it is very important that the court makes finding as to what the exact standard of living is and to make a specific itemized description of the party’s standard of living. Also be sure to ask the court to make specific findings regarding the SPECIFIC DOLLAR amount that is required to meet your and your spouse’s needs.
Earning Capacity and Vocational Exam
In addition, it is CRUCIAL to ask the court to make specific findings regarding the earning capacity of your spouse. Toward that end, you should request that your spouse undergo a vocational examination in order to determine his/her earning capacity.
Imputation of Income
Even if your spouse chooses not to work, you should request that the court impute some sort of income in the judgment. We will also ask the court to issue what is called a “Gavron warning” in the judgment, which is basically an admonition by the court to the supported spouse that s/he become self-supporting within a reasonable period of time and that failure to do so may be grounds for reducing or terminating support.
Income and Expense Declaration
It is also important to give a lot of thought to how you fill out your Income and Expense declaration in order to get an accurate estimate of what your monthly budget is. A good attorney will give you a checklist and tips about how to fill out this important document.
California spousal support awards can have a significant financial impact on you for many years, therefore it is important to contact an experienced attorney who can review the unique facts of your case and create strategies to help you obtain the BEST possible terms in your spousal support order.
