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Twelve common family law questions.

Common Family Questions for a Divorce Attorney

Can men ask for spousal Support in California?

Yes, the gender of the spouse is not a factor in receiving spousal; a husband can get spousal support from his wife if she is higher earner. Receiving spousal support depends on meeting the family code 4320 factors, and qualifying for support; these factors will include the respective income of the parties, their ability to find work, etc. Just because a man is asking for support, it does not mean there is a prejudice against him. He is just as entitled to ask, and realistically when you put an initial petition or response, it is highly usual for either party to ask for spousal support. Whether one gets it or not, the court will decide, however it never hurts to ask, and one should.

Would you say there are more men who ask or more men who get spousal support?

It is hard to say, perhaps the Court has the statistics, but I doubt it is publicly available. The stereotype is that men are more likely to pay spousal support, but the reality may be different. There are "probably" just as many women today who are working and earning more than their spouses. Perhaps 15 or 20 years ago it would have been more common for men to out-earn their wives and to have to pay spousal support; today the situation is different and as divorce attorneys we do speak to a lot of women who have concerns about having to pay support because they have a higher income than their husband. It seems to be a common concern.

Can a spouse get spousal support if they also get the house?

The answer is not definitive because it really depends on the assets of the married parties, and their respective income. It is possible that someone can get the house and refinance it to pay the other spouse, and that spouse could be paying support. That is just one example, and it assumes the house was 100% community party. The question is very fact specific, some people will prefer to not receive spousal support, but opt to keep the equity in the house instead. You could have a combination of getting the house and getting lower support, or even paying support. There are truly so many different ways and there is simply no answer for this. The possibilities are just endless. Because it is such a fact specific question, you should call an attorney and explain your particular case to get the right answer for you.

If you live in the same house can you get Spousal support/Child support?

This one I think is not very clear; in terms of living together and spousal support, it may be difficult to do so just because both spouses are already sharing the responsibility of the house. Because of the fiduciary duty, until the divorce, you have a duty to not dispose of any community property. You will stay pay for bills jointly, so the receiving spouse would have a hard time proving they need the support.

What bills can I list on my spousal support request?

There is an income and expense declaration that you need to fill out and it requires that you itemize your living expenses: utilities, cable, internet, standard basic living expenses, you can use it as your basis for your spousal support request.

The form gives you options to use three different numbers:

the actual down to the penny cost of living

the estimated amount

the proposed amount

Usually if you are asking for spousal support and living together, you will put together a proposed sheet to state what you believe you need monthly to live on your own.

You may also add lifestyle expenses, but it all depends on how much income the other person is earning and what assets you both have. If a guy is used to driving around in two vehicles because his higher income earner wife was paying for it, the Court may not necessarily allow the husband to receive money to pay for both vehicles.

We've had a client who were used to getting bi-weekly massages and professional hair styling, which all came out of their monthly spending, the Court gave it to her because this was part of her monthly expenses and the husband could afford it. On the other hand we also had another client whose husband would spend money to maintain a Harley Davidson that was costly and did not work. When he tried to include the high cost of his recreational transportation to his response and stated he could not pay, the court did not accept it.

Everything is within reason.

When should you ask for child support or spousal support?

In terms of the divorce process, if you are inclined to ask for support or if you need it, you have to do it as soon as possible and ideally around the same time as the initial filing. Because of one the factor in family code 4320 is need, if you do not ask for spousal support for a very long time - let us say your divorce takes two years and you don't ask for support - the court is not likely to find that you need it when you request it later. Therefore, whether you are the husband or wife, if you need the money, ask for it right away. Checking off the box in your petition or response is not enough, all it accomplishes is to notify the Court that it is a decision it needs to make at some point. You have to formally file a request for spousal support. Most of the time, the person needing the money is the one filing the request. I have never seen somebody who may be responsible for paying spousal support be the one to file a request to have the Court issue an order. It is "almost always" the responsibility of the person who needs the support to submit a request as close to the beginning of the divorce as possible.

I cannot afford spousal support, what can I do?

This is a great, but very fact specific question. The court does not know whether or not you can afford, and just because you think you cannot does not mean in the court eyes the situation is the same. Let's say someone is making $3,000 a month after taxes, they decide to live in a nice cozy two bedroom house with their new girlfriend/boyfriend who does not work, and that is why they cannot pay spousal support as they now you have only $1000 left after taking care of the new partner. The Court is just going to assume that while you are entitled to your happiness, such choices should not remove your responsibility towards your ex spouse, and kids. Now if you are making close to minimum wage, you are most likely not going to pay spousal support just because your spouse may have at least the same earning capability. Spousal support comes "mostly" into play when there is a higher earning spouse and the difference is not negligible. For example two spouses making $100,000 each may not have to pay/get child support, but if someone is making $18000 and their spouse is making $27,000, the latter may have to pay.

My situation changed; can I request to lower the amount I pay?

We call it a change of circumstance and you can always go to the court when it comes to money issue and ask for your financial obligations to be changed. As long as the change is significant you can go to Court and request for a change of the order

Can you ask for more than Disso master Spousal/Child Support?

For Spousal Support, absolutely, but whether you can get it or not is a different question. You can ask for more, and the other person can ask to pay less. It is up for debate and you will need to make a fair argument for it. As for child support, unless the other person agrees, you will not get a different amount.

Can I get Spousal Support for Legal Separation?

Yes, You Can! But call us first because the more important question may be "why a legal separation and not a divorce?"

A most common support question: "I am getting divorce, I have X kids, how much support can I get?"

A lot of time people ask a very generic question such as "I am getting divorce, I have X kids, how much support can I get?" To this question I usually answer with 3 questions: How long have you been married? Are all these children under the age of 18? Are they all from the same husband? In California, if you are not married you are not going to get spousal support; it does matter if you lived together for 20 years. If you have children together, as long as they are under the age of 18, you can ask for child support. If you have been married, then support gets divided into two: Spousal and Child Support.

You should understand that Spousal Support and Child Support are completely different, and have nothing to do with one another.

Many computer programs that the Court and attorneys use will print the calculation for child support and spousal support on the same sheet. Child support is a very complex formula, but it is 100% mathematical and it depends mostly on the income of both parents, and the amount of time the kids spend with each. Also there is no negotiating the amount for child support. If both parents agree to more or less, they can do it; otherwise the Court will always order what the program gives. For spousal support however, the Court may decide to order a different amount, it can be negotiated with the Court and one can argue for more or less.

Can I loose custody of my children or visitations if I do not pay child custody?

A parent's ability to visit with their children is not governed by whether or not they pay for child support. In the eyes of the law, the money part is separate from the relationship. Often times the receiving spouse will say ?you haven't paid child support so you can't see your child." Wrong, they can. It is improper to deny a parent's rights to see their kid because they cannot pay. Even if a parent is supposed to pay and they do not, and the custodial person refuses, the paying parent can file a motion or request for order with the court to permit the visitations to continue.

The court does not care about paying when it comes to the relationship between parent and children; the ability to visit with a child is never determined by their parent's ability to pay, never. Even for those who can pay, but do not, it is the same. Again the money issue has no effect on the relationship that court wants any parent to have with their child, somebody who has a financial difficulty should still see their child.

Now, that being said, if someone do not pay and the Court has an order for them to pay, let us say they will have an entire set of very serious problems.

On the other hand think of somebody who has been abusive to their child, they may be ordered to pay, but never allowed to see their kid. That is another example of the court separate financial and personal relationship.

AUTHOR: Jessica Cha, Douglas S. Pinkham

Copyright Pinkham & Associates, APLC - Google+

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.