Day: August 5, 2020

If you are in the process of filing for a divorce in Kern County, you probably have quite a few questions about spousal support. This blog is intended to explain the factors that affect spousal support decisions as well as the difference between permanent and temporary alimony.

What is Alimony?

Alimony, also commonly referred to as spousal support in California, is payment from one spouse to another after they file for divorce. A written agreement that requires the paying spouse to make their payments to support the other spouse needs to be filed with the court before payments are made. This helps to ensure there is no dispute about the payments.

Who Pays Spousal Support?

During divorce proceedings, typically a judge will determine which spouse is responsible for paying alimony in California. When making that decision, the court will weigh a few different factors including:

• The length of the marriage
• Each spouse’s earning capacity
• Each spouse’s needs, based on their standard of living during the marriage
• Each spouse’s debts and assets
• Each spouse’s age and health
• Whether there was a history of domestic violence against a spouse or children
• The supported spouse’s ability to become employed without impacting the care of the couple’s children
• Tax status and impact a divorce and spousal support will have
• Role each spouse played in the educational or career development of the other spouse
• The paying spouse’s ability to pay alimony and for how long
• Any other factors the court chooses to consider

To award alimony, a judge must find that one spouse has a financial need and that the other spouse has the ability to pay.

How Long Does Spousal Support Last?

It depends on the length of the marriage. In California, any marriage that is 10 years or longer is considered a “marriage of long duration” or “a long term marriage.” In long term marriages, the final divorce Judgment will generally provide for spousal support until the death of either party, supported spouse’s remarriage or further order of the court, whichever occurs first. This means that unless one of the parties passes away or the supported spouse gets remarried, spousal support will continue until the supporting spouse takes the supported spouse back to court to modify or terminate his or her support obligation. In California, family law courts expect supported spouses to become self-supporting within a “reasonable period of time” which is generally one-half the length of the parties’ marriage. This, however, does not mean that in long term marriages, the courts cannot order support for longer than or less than one-half the length of the parties’ marriage. In contrast, in marriages that are less than 10 years, spousal support will generally only last one-half of the length of the marriage. In other words, if you were married for eight years, you can generally expect to pay spousal support for four years.

The spouse who is requesting alimony in California can do so as soon as the date of the divorce filing. In California, spouses are able to request the temporary alimony pending their divorce trial and  permanent alimony at the time of their divorce trial.

Permanent Alimony vs. Temporary Alimony

Temporary alimony, which is based on a temporary spousal support guideline, is a payment from the supporting spouse to the supported spouse who earns less or no money. Temporary alimony ends when the judge finalizes the divorce. At that time, typically, a permanent alimony award will be put in place. Essentially, temporary alimony is an order for support during the divorce proceedings. The purpose of temporary alimony is to preserve the status quo in order to try and keep some semblance of what the couple had financially while they were married.

How is temporary alimony calculated?

California divorce laws allow the court to determine the temporary spousal support request by using a guideline calculator. The calculator enables the court to get a fair look and consideration of the needs of both parties and their ability to pay. Each County in California has adopted its own temporary spousal support guideline. Unlike permanent alimony, temporary alimony, as the name suggests, is just a short-term solution.

Depending on the length of your marriage, permanent alimony is pretty standard procedure in Kern County divorce courts. In California, permanent alimony is also called permanent spousal support, post-judgement spousal support and long term support. 

Figuring out permanent alimony in California is more complicated than calculating temporary spousal support. The court must list and consider each factor listed in California Family Code 4320 to determine the length and amount of alimony. These factors include the standard of living during the marriage, income, spouses needs and health and so on. Permanent alimony is typically a lower than temporary alimony.

Just because it is called permanent alimony it does not mean it is a lifetime award. In some permanent alimony cases, a judge will put a termination point on the file. A spouse that is receiving support is expected to get back on their feet and support themselves eventually. Of course there are instances when a supported spouse just may not be able to care for themselves financially or come close to what their standard of living during the marriage was. Some of those instances may be:

• The marriage was more than 30 years long
• The financially dependent spouse is age 50 or older
• The financially dependent spouse is in poor health, handicapped or has a limited earning potential
• The supported spouse gave up their career to raise the couple’s shared children full-time

Gavron Warning

This is a warning that alerts the supported spouse they are expected to become self-supporting (barring the above special or similar circumstances). The Gavron Warning gets its name from a landmark California case. In that case, an ex-wife received support in the form of permanent alimony. The spouse was not employed. Six years into the payments, the paying spouse argued that his ex-wife had ample time to become self-sufficient. The courts then modified the spousal support arrangement and viewed the supported spouses failure to gain employment as a change in circumstance. So, the burden shifted to her to prove that she did, in fact, need additional support. Today, the Gavron Warning is a way for the courts to warn the supported spouse that they need to make efforts to become self-sufficient and if they don’t, their alimony payments can be discontinued at some time in the future.

Now let’s look at some other circumstances in which permanent alimony can be terminated :

• The supported spouse gets remarried
• Death of the supported spouse or supporting spouse
• The predetermined length of support expires
• Any change in circumstances of one of both of the parties that impacts the need or ability to pay spousal support

It’s important to remember that just because it is called permanent alimony, does not necessarily mean it is written in stone until the end of time. Permanent alimony can be modified or terminated, unless of course there is language in the divorce settlement that specifically states the alimony is non-modifiable.

If you are in the process of filing for a divorce, we hope this guide can help you sort through the differences between temporary and permanent alimony and understand how the legal process works. Contact us with your divorce or family law needs. Our attorneys are experienced, compassionate family law specialists available to help you understand your rights and navigate you through the divorce and spousal support process.

Child custody cases are often confusing and distressing. There’s a lot of misinformation surrounding them online, especially with regard to how custody determinations are made. In addition, laws vary from state to state, and these bear weight differently in certain jurisdictions as a result, especially when it pertains to the preference of the child. Child advocates have worked hard to ensure that children’s voices are heard during the process. Let’s take a look at how a child’s preferences are incorporated into custody proceedings.

Around the nation, children typically don’t gain a voice in custody proceedings until their teenage years. In California, however, progressive laws such as Family Code 3042 have enabled children to express their custody preference even at a young age.

What are the Types of Custody?

Children and parents may be unaware that under both California and Kern County family law, there are two types of custody, and each type of custody may be solely or jointly kept. Physical custody is what most people think of when they hear the word “custody.” It refers to the living situation of the child; the parent with whom the child lives is the “custodial parent,” and the other parent typically has visitation rights. However, if both parents have “joint physical custody,” the child may split their time evenly between the parents’ residences.

The other type of custody is legal custody. The parent with legal custody is able to make decisions about the child’s education, medical care, religion, and other health and lifestyle factors. Under California law, legal custody is usually jointly assigned. Parents may have joint legal custody without having joint physical custody. A parent may achieve sole legal custody if the other parent is deemed unfit to make decisions in the best interest of the child.

What California Law Says About Children’s Custody Preference

The Family Code 3042 broadly defines a child’s ability to express choice, stating “If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation, the court shall consider, and give due weight to, the wishes of the child in making an order granting or modifying custody or visitation.” This means that any child deemed mature and intelligent enough to clearly express their preference must have their choice taken into consideration.

The Code goes on to set the age threshold at which children are automatically deemed able to express their preference. While those aged 14 and older are considered mature enough to make a choice, the court shall listen to those younger if an evaluation finds that they are making an informed preference. However, even if younger children are precluded from giving testimony, the court must provide a way to assess the child’s preference, such as through an evaluator.

Finally, a judge may never force a child to testify if they don’t wish to do so. If a child doesn’t want to speak in court, the judge may appoint an evaluator, investigator, or mediator to assess the child’s preference (if any) and find any relevant facts that may help with the determination.

What Types of Preferences Can a Child Express?

The child may tell the court which parent they prefer to have custody, and they may also express preferences for visitation (or lack thereof). Many courts will hear a child’s preference for sole custody with one parent, but order counseling, reunification, and other measures to keep the child in contact with the non-preferred parent.

Children may express the reasons for their preference, and these reasons will be weighted according to their bearing on the child’s well-being. For example, if the child believes that one parent is better able to provide access to their preferred school and extracurriculars, judges will weigh that preference more heavily than if a child prefers to live with the parent who has a big-screen TV and pool.

How Is a Child’s Preference Expressed in Court?

Under California law, children do not necessarily have to give testimony in open court. The court determines the means by which the testimony is gathered. The child may disclose to the judge in chambers, or they may speak through a designated evaluator or advocate. Children are permitted to share their preference without the presence of the parents of their attorneys, although attorneys and the court reporter are usually present in chambers. Wherever the child gives testimony, the court reporter will document it, and the court may also permit a listening device for the benefit of the parents and counsel.

Finally, the child may speak directly to the judge or to the divorce attorneys. It is not common for children to be questioned by the parents if the parents have representation. Judges may limit the line of questioning by the attorneys to protect the child from distressing or embarrassing topics.

The Role of Custody Preference in Proceedings

Of course, a child’s preference is not the be-all-end-all of the proceedings. It is one of several factors that will be taken into consideration. The court will evaluate the situation and may determine that an investigation is necessary to discover if the child’s preference is free of external influence. For example, some children may be alienated from one parent due to manipulation, false information, or abuse by the other parent. Others may be psychologically distressed by the family situation and may be expressing a preference not born of sound mind.

Family Code 3042 and California Rules of Court 5.250 provide multiple courses of action should a court suspect that a child has been unduly influenced. These include the ability to appoint a child custody 730 evaluator or separate counsel to the child. These professionals can assess the information and inform the judge of the weight a given child’s testimony might have in the custody determination.

No matter how the testimony is collected or what it entails, it must be fully documented and released to the judge, parents, and counsel. Some information will be kept confidential and on a need-to-know basis. Ultimately, the judge will make the custody determination based on the best interest of the child.

How Can Parents Express Their Custody Preference?

If a parent seeks custody, they must file a formal request for order with the court. They may state that the child has expressed a custody preference to them. This statement will be compared with any testimony collected from the child. Parents should take care to present the facts and rationale for obtaining custody without seeming to pressure or influence the child’s decision.

How Do Judges Make Custody Decisions?

Judges will draw from the testimony of the parents and children who are deemed mentally and emotionally fit to give unbiased information free of external influence. The results of any fact-finding missions by child custody investigators and divorce attorneys will also be incorporated. While no two judges are alike and each is entitled to their own decision-making process as permitted under California and Kern County law, most courts take the following factors into consideration:

• each parent’s history of care and attention to the child
• each parent’s fitness as a caregiver
• each parent’s household stability
• any history of abusive behavior, substance abuse, or violence
• any factors describing the child’s health and safety
• any manipulative behavior that may cause undue influence on the child, including alienation from the other parent
• any false allegations or other manipulations to sway the outcome of the proceedings
• where the child’s siblings reside
• the child’s custody preference
• any particular health, financial, or lifestyle needs and preferences of the child

If you are seeking a Bakersfield family law attorney, contact Azemika & Azemika for comprehensive counsel on custody, divorce, and all family law matters. We will fight for your family and help you navigate the complexities of custody hearings and divorce proceedings, keeping the best interest of the child at heart. Contact us today for a free consultation and learn how we can protect you and your family.

No matter the custody situation, both parents of a child usually have financial responsibility for that child. Across the nation, parents must fiscally support a child or face legal consequences. That said, child support situations can be challenging to navigate. Here’s what you need to know about your rights and responsibilities as they pertain to child support.

When is Child Support Needed?

A judge may order a parent to pay child support under three main circumstances. These are:

• divorce
• legal separation
• paternity cases

In each of these situations, there is a separation of the child from the parent that would preclude normal means of financial support. The court assumes that the custodial parent is already fiscally supporting the child by way of food, clothing, hosting, and other costs. If the child is separated from the other parent in any way, child support provides a legal means of ensuring continued fiscal responsibility for the child.

Child support continues until the child turns 18 years old, unless the child is still in high school and resides with a parent, at which point the support may legally continue until the child turns 19. If the child becomes self-supporting in any way, such as through marriage or joining the military, the child support may end. On the flip side, the child may continue to receive child support if they have a disability or other circumstances that prevent them from becoming self-supporting.

How Child Support Is Calculated

Courts determine child support responsibilities by assessing the net disposable incomes of both parents. Rather than creating undue burden on either parent, the court uses a sophisticated mathematical formula to decide how much support a parent is required to provide the child. This formula includes:

• salary, wages, or other earnings from employment, including self-employment
• commission income
• tips
• benefits from unemployment, disability, or other state assistance
• workers’ compensation
• social security income
• payouts from pensions
• income from interest or dividends from investments
• lottery, monetary rewards, or other winnings

To determine the child support amount, both parents will need to provide all documentation of these various sources of income. All these sources are compared with existing financial responsibilities, including housing costs, taxes, union dues, healthcare premiums, retirement contributions, and pre-existing child support arrangements.

The court shall also assess other expenses that may impact the parent’s ability to pay child support, including costs for childcare, healthcare, and transportation for visitation. In some cases, these add-on expenses may be divided equally among parents or proportionately assigned based on their income. Another factor in determining guideline child support is the proportionate time-share that a parent has with the child.

What Happens to Parents Who Do Not Pay Child Support?

Once a court mandates child support, any parent who does not comply will be subject to severe penalties. The law permits for wages to be garnished, driver’s and professional licenses such as medical and law licenses and passports to be revoked or suspended, credit scores to be impacted, and liens to be placed on one’s property. Also, parents who do not pay child support may have their tax refund, unemployment income, and workers’ compensation reduced. If they continue to not pay, they may be subject to fines and even incarceration.

A parent may not evade child support by refusing to work. A court may impute someone, based on their employment history and qualifications, and determine an amount for which they are fiscally responsible to the child.

If the custodial parent struggles to receive child support from the parent who owes child support, they may petition the court to garnish wages or otherwise procure the funds from the parent.

Do Parents Have a Say in What They Pay?

If parents mutually agree on financial obligations, the courts may take that into consideration. Parents may also offer and agree to pay a higher amount of child support. If a parent would like to agree to receive less, they must not receive public assistance and they must affirm to the court that they know their rights and were not coerced into the agreement. As always, the best interest of the child comes first: the child’s needs must be met in any arrangement.

If circumstances change and the child spends more time with the non-custodial parent, or if one parent experiences a sharp decline or increase in their financial stability, the child support arrangement may change. If one parent has another child or becomes incarcerated, the arrangement may change under those circumstances as well. However, the court must also reevaluate both parents’ financial situation and the time they spend with the child in order to make a new determination.

Can A Parent Deny Visitation if Child Support Is Not Paid?

Under California law, any parent who has been granted visitation rights under a custody arrangement can continue to enjoy those rights, even if they are behind or short on their child support payments. It’s important to accommodate visitation rights. If a custodial parent feels that the other parent is using visitation rights without supplying financial support, they may petition the courts for a new arrangement or submit a request for the other parent’s wages to be garnished. However, it is important to note that custodial and visitation rights are separate and apart from child support. Just because a parent does not pay child support, it does not mean that they do not have any custodial or visitation rights. Similarly, just because a parent pays child support, it does not mean that they have more custodial or visitation rights.

Common Mistakes Made in Child Support Cases

Child support is understandably an emotionally stressful and contentious subject. However, it’s extremely important to abide by California law and adhere to all requirements issued by a court. Failure to comply may cause substantial problems down the line. Both parents in a child support determination case must honestly disclose their income and expenses. If they do not, they will be easily found out — and potentially fined or forced to issue back pay to the custodial parent with interest.

It’s also important to send your child support the proper way. Wage garnishment might be the ideal means of collecting child support, because it takes any confusion out of the question. The parent owing child support can rest assured that they are meeting their commitment. However, other methods may be approved by the court or more preferable for the parties involved. No matter which method is decided upon, the parent should ensure that they comply to avoid repercussions.

Both parents should immediately report any income changes, positive or negative, to the courts and request a modification to the child support arrangement. Even bonuses and side job income must be reported so that the courts can make the most accurate determination.

Never assume that you can keep something secret from the court. It’s well worth your peace of mind to be forthright about your earnings. Should you need assistance, a dedicated child support attorney can help you navigate the process.

Wrapping Up

Child support can change swiftly and have lasting effects if not handled properly. Both parents must be vigilant and transparent about their income and expenses in order to best provide for the child. Keeping in contact with the courts is the best way to ensure that child support is fairly apportioned and collected. As with anything, honesty is the best policy to ensure the child’s wellbeing. For comprehensive representation in any Child Custody and Child Support matter, contact Azemika & Azemika Law. We will fight for and protect you and your family during the separation and divorce process. Contact us today by phone at 661-322-8166 to arrange an initial consultation with our attorneys or send us a message now!