What is temporary child support?
Temporary child support is support awarded for children, during the pendency of:
- A proceeding for dissolution or legal separation
- Any other proceeding in which support of a child is at issue.
How is temporary support computed?
The Statewide Uniform Guideline applies to both temporary and permanent support orders. Temporary support is computed using the same formula given by the Statewide Uniform Guideline and following the same principles.
Can the amount of permanent child support and temporary child support be different if the same formula was used?
Yes. Although permanent and temporary child support both use the Statewide Uniform Guideline formula, the amount of the permanent award may vary from the amount of the temporary award, based on the changes in the parties’ circumstances during the pendency of the proceedings. Examples of circumstances that can change are parties’ income or time-sharing arrangements.
Can temporary support be given retroactive effect?
Yes. The order for temporary support may be made retroactive to the date of filing the petition or other initial pleading. If the parent ordered to pay child support was not served with the petition or other initial pleading within 90 days after filing, and the court finds the parent was not intentionally evading service, then the earliest date on which the order can be effective is the date of service.
For how long will temporary support be effective?
A temporary support order remains in effect until a permanent support order is made, or the order is otherwise terminated by the court or by operation of law. The court may modify or terminate a temporary support order at any time, except as to amount that have accrued before the date the notice of motion or order to show cause to modify or terminate was filed.
When is temporary support not enforceable?
A temporary support order is not enforceable during any period in which the parties have reconciled and are living together, unless the order specifies otherwise.
For example, if a wife files for divorce in Stanislaus County in May and obtains a temporary child support order, but reconciles with her husband in June who resumes living with her, she cannot collect child support in subsequent months as she has reconciled with her husband and is living with him.
It’s not uncommon for a spouse to enter marriage with a vacation property. However, in the event of divorce a child support issue may arise: can the family court consider the parent’s ability to receive income from the vacation property in calculating child support?
If you own income producing assets like a vacation property the family court can, in it’s discretion, impute the earning capacity of the vacation property to the parent-owner. Even if the vacation property is used solely for personal use, it can generate income as a short-term rental property. Accordingly, the court has the ability to impute the earning capacity of the non-income producing vacation property against the owner-parent. In brief, just as the court can impute earning capacity for a voluntary reduction in income, the court can impute earning capacity for not utilizing assets that can produce income like a personal vacation property.
The California family court is guided by certain statutory principles in calculating child support. Some of those principles suggest why the family court deems it acceptable to impute the earning capacity of non-income producing assets such as vacation properties, even if those assets/properties are separate property. Namely, Family Code 4053 states in part
(a) A parent’s first and principal obligation is to support the parent’s minor children according to the parent’s circumstances and station in life.
(d) Each parent should pay for the support of the children according to the parent’s ability.
(e) The guideline seeks to place the interests of children as the state’s top priority.
(h) The financial needs of the children should be met through private financial resources as much as possible.
Family law cases involving imputed earning capacity are not straightforward. In the case of imputing earning capacity for underutilized assets, the court must determine a reasonable rate of return from the asset. That value isn’t necessarily determined by a past history of income from the asset; rather, the court may need expert testimony to learn what should be a reasonable rate of return. Accordingly, cases of this complexity require representation from a local family law attorney. In light of the number of court appearances that may be required, hiring a local family law attorney may save you some money in attorney fees for travel.
The Goal of Alimony
Alimony (also known as spousal support) allows many individuals to get divorced and end abusive or unhappy marriages by awarding ongoing financial support during and after a divorce. California family courts grant alimony only in cases where they can determine that alimony is necessary. There are several types of alimony available after you file for divorce. Consult with a family law attorney to learn how to ask for spousal support and find out whether you’re entitled to temporary or permanent spousal support when you file for divorce.
The main goal of alimony is to give a spouse ongoing financial support after the marriage. A spouse no longer has to stay in a bad marriage for fear of losing financial support and comfort. A spouse can get a divorce and receive financial support temporarily to help get back on their feet or, in some cases, maybe even permanently.
How To Get Alimony
To receive alimony, you will need to prepare a strong argument about why you need it. Courts typically grant alimony to spouses who can demonstrate they need it. Alimony is typically granted in these or similar circumstances, but it can be granted in other cases as well:
- A disability or health concern that makes it hard to support yourself.
- A very long marriage, and you are accustomed to being supported.
- Stay at home parent who cares (or cared) for the children or home.
Depending on the reasons that you request alimony, the court still needs to make a full assessment of your alimony claim. Family law courts apply different alimony factors listed under California Family Code § 4320 in deciding whether to grant permanent alimony. These factors range from the spouse’s income and assets to each spouse’s needs and the standard of living to which the couple were accustomed. Other factors that will be considered are each spouse’s age, health, and contribution to the other’s education or professional license.
If you are considering getting divorced, but you are concerned about how you will be able to support yourself during and after the divorce, speak with a California family law attorney. An attorney can explain your options and help you understand whether you might qualify for temporary alimony or permanent alimony, as well as the possible amount. An attorney can also help you develop a strong case for spousal support to be presented to the family court judge.
In California, many types of property are divided equally in divorce. California is a community property state, meaning that with limited exceptions property acquired during marriage is classified as community property and subject to equal division in divorce. However, even when some types of property are classified as community property, they’re not divided equally. One of those types of community property that are NOT divided equally in divorce are “community estate personal injury damages.”
Personal Injury Damages Are Community Property
Family Code Section 780 states:
money and other property received or to be received by a married person in satisfaction of a judgment for damages for personal injuries, or pursuant to an agreement for the settlement or compromise of a claim for such damages, is community property if the cause of action for the damages arose during the marriage.Family Code 780
In light of Family Code 780, personal injury damages for a claim that arose during marriage are considered community property. For example, if a husband was injured in a car accident during marriage and filed a personal injury lawsuit, any subsequent settlement or judgment proceeds would be classified as community property.
Personal Injury Damages Exception To The Community Property Division Rule
While Family Code 780 classifies personal injury damages as community property, Family Code 2603(b) creates an exception to the 50/50 division rule for this form of community property. The statue reads:
(b) Community estate personal injury damages shall be assigned to the party who suffered the injuries…Family Code 2603(b)
Therefore, while personal injury damages for a claim that arose during marriage are community property, they are generally awarded to the injured spouse. The only instance in which the court can award some of the damages to the non-injured spouse are when the “interests of justice” require such after considering the needs and economic condition of the parties, time since recovery of the personal injury damages, and all other facts of the case. (See Family Code 2603(b)).
In ordering permanent spousal support, the family court must consider the extent to which each party’s earning capacity can maintain the standard of living established during marriage. Accordingly, the court must consider the following factors in its spousal support decision: (See Family Code 4320(a))
- The recipient’s marketable skills
- The job market for those skills
- The time and expenses required for the recipient to gain the appropriate education or training to cultivate marketable skills
- The need for retraining or education to gain more marketable skills or employment
- The extent to which the recipient’s present or future earning capacity is impaired by periods of unemployment during the marriage to permit the recipient to devote time to domestic duties.
Read the entire article on https://rosevilledivorce.com/spousal-support/earning-capacity/ – the website of family law attorney Jin Kim.