Spousal Support and California Family Code §4326

California Family Code §4326 discusses some points regarding spousal support that may be worth noting.  Under certain circumstances, the termination of child support may constitute a “change of circumstance” sufficient to allow a party to file for modification of the child support order.  One detail to be aware of is that the motion to modify must be filed within 6 months from the date the child support order ends.  If you are near the end of your child support order, it may be worth speaking to an attorney to determine whether a modification of the support order may be advantageous.

Calculating Guideline Child Support

Figuring out how much child support you should be paying can sometimes be a frustrating task.  First, you will have to figure out what the gross income is of each parent.  The tax deductions and tax rate will make a significant difference, so be sure those numbers favor your side.  The Department of Child Support Services has an online calculator and manual available at:

http://www.childsup.ca.gov/Resources/CalculateChildSupport.aspx

As a general rule, the more you pay in taxes, the less you pay in support.  If you don’t understand this, you can shoot yourself in the foot, so to speak, when you discuss the matter with the opposing side.  I have had clients who have looked at the calculations and begin to state, “Hey wait, I am not single and one!  I am married and four!”  Had I not been there to stop them from finishing their sentence, they would have just talked themselves into paying a few hundred more every month.

When hiring an attorney, it may be important to make sure that they understand how the calculations work.  I have had extensive training in taxation matters, and this knowledge has saved my client on more than one occasion.  I once was employed by a firm where the main attorney had over 10 years experience.  She was trying to stipulate a judgment based on an incorrect calculation.  The case was handed over to me to finish, and I noticed that the calculation was based on the opposing party’s income that was nontaxable in the “other taxable” box.  The result was my client owed $800 less every month than her own attorney (my boss) was trying to stipulate to!  I immediately called opposing counsel and asked them to correct this error, or there would be no agreement.  My client was elated!  The whole point is that you should not assume your attorney knows the calculator program well, even if they have been practicing many years.  Ask questions if you don’t understand.

Family Code 2640 – Separate Property Reimbursements

Family Code 2640 applies to situations where separate property of one spouse was used to purchase a community asset. FC 2640 states (a) “Contributions to the acquisition of property,” as used in this section, include downpayments, payments for improvements, and payments that reduce the principal of a loan used to finance the purchase or improvement of the property but do not include payments of interest on the loan or payments made for maintenance, insurance, or taxation of the property.
(b) In the division of the community estate under this division, unless a party has made a written waiver of the right to reimbursement or has signed a writing that has the effect of a waiver, the party shall be reimbursed for the party’s contributions to the acquisition of property of the community property estate to the extent the party traces the contributions to a separate property source. The amount reimbursed shall be without interest or adjustment for change in monetary values and may not exceed the net value of the property at the time of the division. (c) A party shall be reimbursed for the party’s separate property contributions to the acquisition of property of the other spouse’s separate property estate during the marriage, unless there has been a transmutation in writing pursuant to Chapter 5 (commencing with Section 850) of Part 2 of Division 4, or a written waiver of the right to reimbursement. The amount reimbursed shall be without interest or adjustment for change in monetary values and may not exceed the net value of the property at the time of the division.

Departure from Guideline Child Support – Family Code 4057

Guideline child support, while normally ordered by the court as the amount of child support owed, may not be appropriate in certain situations.  Family Code Section 4057 allows a departure from guideline Child Support amounts when ordering the guideline amount of child support would be unjust or inappropriate in a particular case. This requires an extensive knowledge of case law.  If you believe that other income or factors should be considered by the court that do not fall under the category of traditional income, you should hire an attorney to represent you.

TIME REQUIREMENTS FOR A REQUEST FOR ORDER- Civil Code of Procedure 1005

When filing a Request For Order (RFO), be aware of Civil Code of Procedure §1005 requirements.  This code requires that the motion be filed and served (you can serve prior to obtaining a conformed copy stamp) at least 16 COURT days before the hearing.  The papers you serve must be the same as what you file with the court (meaning you must include any attachments filed).  All papers opposing a motion, such as a Response, require at least 9 COURT days prior to the hearing.  A reply to the Response must be served and filed at least 5 COURT days prior to the hearing.

BEWARE:  The above notice requirements apply only to personal service of the papers.  A post-judgment filing for issues of custody, visitation or child support require an address verification (form FL-334 – see Family Code §215). See below for time to be added, depending on method of service.  Also notice that the above requirements are in Court days, and the additional periods are counted in Calendar days.  Court days mean that no weekends or holidays count as a day of notice, and you do not include the date served (the next day counts as day one) or the day of the hearing.

OTHER THAN PERSONAL SERVICE – If you mail the RFO, you must add 5 CALENDAR days to the notice requirement if mailed within the state of California.  Different rules apply for service outside of California.  If you serve by facsimile, express mail, or other method providing overnight delivery, you would need to add 2 CALENDAR days to the notice period.

Law Office of Rhonda Ellifritz