F A Q S - Family Law
Frequently Asked Questions
We hope that the information provided will help you understand some of your rights and obligations subject to our disclaimer.
- Is new mate income considered in child support?
- When does child support stop?
- My ex lives in another state where the cost of living is less. How do California courts determine alimony or spousal support for other states?
- I lost my job and cannot pay support. What do I do?
- Do i have to wait until we are separated to get a child custody or support order?
- Must i share my child's tax exemptions?
- If i am pregnant and i want to leave the state, should i wait until the baby is born?
- I was divorced in orange county and i am moving to Arizona. Can i change my custody/visitation plan in an Arizona court?
- If i have no assets and i don't want support, is there an easy way to divorce? Do i still need an attorney?
- If a gay person is legally married in another state, will california recognize the marriage?
Q. IS NEW MATE INCOME CONSIDERED IN CHILD SUPPORT?
My boyfriend and I live together and he is a non-custodial parent of a newborn baby. The mother of the child is threatening to get everything from him and me through child support.
The short answer is NO in almost all cases. In fact, California law (California Family Code section 4057.5) states that:
“The income of the obligor parent's subsequent spouse or nonmarital partner shall not be considered when determining or modifying child support, except in an extraordinary case where excluding that income would lead to extreme and severe hardship to any child...”
The same law describes what an “extraordinary case” may include and states,
“... an extraordinary case may include a parent who voluntarily or intentionally quits work or reduces income, or who intentionally remains unemployed or underemployed and relies on a subsequent spouse's income...” (Emphasis added)
So in your case, if your boyfriend quits work and you support him, the court clearly can find the case “extraordinary” and include your income. If your boyfriend simply moves in with you and continues to work, or if you and your boyfriend get married, your income will not be considered in setting support, except to the extent that it may change the tax rate if you marry. (If you marry and the result is a lower tax rate, it will play a part in the formula used in determining the amount of support. Not the amount you earn, just the tax rate.)
To better understand your rights, you should meet with a Family Law attorney.
Q. WHEN DOES CHILD SUPPORT STOP?
The duty of a parent to support his or her child is imposed by by the California Family Code Section 3900. The law further states:
"(a) The duty of support imposed by Section 3900 continues as to an unmarried child who has attained the age of 18 years, is a full-time high school student, and who is not self-supporting, until the time the child completes the 12th grade or attains the age of 19 years, whichever occurs first."
In other words, often, children turn 18 while they are still in their last year of high school. In most cases, they cannot go out and earn a living until they complete high school and since they are no longer considered a "minor" under the law, the Family Code requires the supporting parent to continue to provide child support so long as the child is a "full time" student attending high school or its equivalent, until the son or daughter completes high school (12th grade).
"Full time" is generally accepted to mean 12 units of schooling, but it is within the discretion of the court to determine what is "full time."
To avoid a "career" student, the law provides that once the child no longer lives with the custodial parent, is self supporting or turns 19 years old, the parent who was obligated to provide support is released from that obligation.
The law also states:
"(b) Nothing in this section limits a parent's ability to agree to provide additional support or the court's power to inquire whether an agreement to provide additional support has been made."
To better understand your rights, you should meet with a Family Law attorney.
Q. MY EX LIVES IN ANOTHER STATE WHERE THE COST OF LIVING IS LESS. HOW DO CALIFORNIA COURTS DETERMINE ALIMONY OR SPOUSAL SUPPORT FOR OTHER STATES?
A. California judges use California Law which considers all of the factors as set forth in the California Family Code. The factors include the balancing of hardships which takes into consideration the local costs of living as reflected on the living style of both spouses. For example, if one spouse is now living in a 4 or 5 bedroom home estate and the other is in a 1 room apartment, there is a presumption that the former is living better than the latter and the latter has a hardship. There are about a dozen separate factors to be considered and you can look under "spousal support" here in the website and they are listed.
Q. I LOST MY JOB AND CANNOT PAY SUPPORT. What do I do?
We all know the economy is bad, but what happens if you cannot afford to pay child support or spousal support at the same level you were ordered? It may be because you lost your job or suffered a general reduction in income. It is important to understand that if you do not pay as the court ordered (Judgment of Dissolution or Support order) you will expose yourself to future problems. You must take action.
The Problems:
1. The order continues until it is modified. In other words, if the order is $500 per month, in two (2) months you will owe $1,000 and it continues and does not go away.
2. Interest is added to the amount you owe. Under California law, judgments accrue interest at the rate of 10% per annum. If your order was for $500 per month, in one year you will owe $6,000 plus $304.39 interest. In five years, if you made no payments, you would owe a total of over $38,000!
3. If the other parent hired an attorney to prosecute and collect what you owe, you would also be liable to pay attorney fees for the other parent.
4. You could also be cited for contempt of court and wind up paying a fine and for each payment missed, you can go to jail.
How to avoid the problems:
DO NOT PROCRASTINATE. It is important to take prompt action. If you have suffered a significant loss of earnings that are not your fault, you must modify your Judgment or order to reflect a lower payment due. Unless the order is modified, the previous order remains and the court cannot reduce it retroactively.
For example, if you lose your job in January and after a diligent effort to find new employment you cannot get new employment at the wage level you previously had, if you wait to go to in September, the court cannot do anything about the payments you missed before you filed your request to reduce the obligation. If you have not filed your motion for relief, once the date for payment has passed, the court cannot change the order for those dates.
Should you not be able to obtain new employment, or the employment you obtain is at a significant loss of earnings, you will need to be able to prove to the court of your efforts.
Here is what you need to do:
1. Document the fact that you lost your job at no fault of your own. “No fault of your own” means you have not voluntarily quit your job notwithstanding good health and available employment opportunities. Most companies give you written notice of your termination or lay off. Make sure you keep your documents in order to prove you had no choice.
2. Begin looking for new work immediately. Keep a log of every effort you make. If you send out resumes, keep an accurate record of where and when you are sending them. If you go to an employment agency, or governmental jobs bank, keep a copy of the paperwork or contracts you have.
3. If you have interviews, keep a copy of the business card of every person you interview with. Again, keep a written log of where you applied and who you saw.
4. If you cannot meet your support obligation, contact the other parent and explain the problem.
Often, I am asked by a parent who can not meet their obligation,
“Should I tell my ex that I cannot pay support?”
Again, document the contact with some sort of written communication. If your conversation was oral, follow it up with a written note or email describing what the problems is and the other parent’s response. KEEP A COPY for your records. Although it may be embarrassing to admit the loss of employment, if you can get understanding and cooperation from the other parent, it may eliminate the need to battle in court.
But beware, if the other parent says,
“No problem, pay me when you can...”
your obligation does not go away without you taken the next step and filing a formal modification. We have had many cases where the parent who lost his or her job stops paying for a period of time, then several years later they are served by the County Department of Child Support Services seeking large payments that have accrued years of interest and penalties.
5. If the other parent agrees to reduce support, contact an attorney to draw up a written stipulation which will be reviewed by the court and then filed and entered in the court records to modify the older order to the terms you and the other parent have agreed to.
6. If the other parent does not agree, contact an attorney to assist you in filing a motion asking the court to modify your Judgment and reduce the amount you must pay consistent with your ability to earn.
Q. DO I HAVE TO WAIT UNTIL WE ARE SEPARATED TO GET A CHILD CUSTODY OR SUPPORT ORDER?
You can seek both custody and support orders BEFORE you actually separate. The California Family Code requires parents to provide for their children's health, education and shelter. It doesn't distinguish between separated parents or parents living together.
You should meet with a Family Law attorney as soon as possible to better understand your choices. California Law also provides that if you need the services of a lawyer in order to obtain benefits for children, the court has the power to not only award child support, but to make an award that the other parent help pay for your attorney.
Typically, the process is as follows:
1. You would file a petition to establish a parental relationship with the biological father (Paternity action) and as part of that petition you would seek
a. Custody;
b. Child support orders, including
i. health care costs and
ii. child care expenses to allow you to work and
c. Attorney fees to obtain the orders.
In determining child support, the court would consider both parents' income as well as the amount of time the each parent is responsible for the care and custody of the child.
In determining custody, the court would take into account which parent is most fit and in whose custody the child's best interest would be. A great tool is to keep a journal describing and specific problems the other parent has that will not be in the child’s interest. For example
2. A heavy smoker, (especially if the child is asthmatic;
3. Abuse of drugs or alcohol,
4. Failure to use proper child restraints when driving.
Keep the journal up to date and protected as it will help the court in making a determination of what is in the child's best interest.
Q. MUST I SHARE MY CHILD'S TAX EXEMPTIONS? I have full custody of my two children and my ex is also telling me that he should be able to claim one of them on his taxes. Is this legal or should we have an order stating that?
When parents divorce, it is not unusual for the parties to agree to splitting or sharing the tax deductions. If one parent is not employed or does not earn very much, often the deduction will do more good if it is shifted. Often this is part of the negotiations leading up to a support order.
If a qualifying child is claimed as a dependent by both parents and the parents do not file a joint return, the child is normally treated as the qualifying child of the custodial parent, (the parent with whom the child resided for the longest period of time during the taxable year.)
Without a court order, the controlling source is Federal Internal Revenue Code (IRC). The (IRC) allows the dependency exemption and child tax credit to be shifted to the noncustodial parent when a child receives over one-half of the child's support during the calendar year from the child's parents who are either: a) divorced, b) legally separated, c) separated under a written separation agreement, or d) living apart at all times during the last six months of the calendar year. The child must be in the custody of one or both of the child's parents for more than one-half of the calendar year.
If you have primary physical custody and your ex pays less that ½ of the total expenses incurred by the children, your ex cannot legally claim the children unless you release the exemptions to your ex.
The rules state that release of the exemption and child tax credit for any calendar year requires the custodial parent to sign "a written declaration (in such manner and form as the Secretary may by regulations prescribe)" that he or she will not claim the child as a dependent for that year. Also, the noncustodial parent must attach the signed declaration to the noncustodial parent's return for the applicable year.
In other words, in order for him to legally claim either child, or both, he must attach a written release that you signed the release. Typically, an IRS form 8332 (which you can get on line from the IRS) is signed and attached to the non custodial parent’s tax return. Alternatively "If the divorce decree or separation agreement went into effect after 1984, the noncustodial parent can attach certain pages from the decree or agreement instead of Form 8332. To be able to do this, the decree or agreement must state all three of the following.
1. The noncustodial parent can claim the child as a dependent without regard to any condition (such as payment of support).
2. The other parent will not claim the child as a dependent.
3. The years for which the claim is released.
The noncustodial parent must attach all of the following pages from the decree or agreement.
Cover page (include the other parent's SSN on that page).
The pages that include all of the information identified in (1) through (3) above.
Signature page with the other parent's signature and date of agreement."
To understand what is best for you, meet with a Family Law attorney.
Q. IF I AM PREGNANT AND I WANT TO LEAVE THE STATE, SHOULD I WAIT UNTIL THE BABY IS BORN?
If you are pregnant, unmarried and/or considering divorce and you are contemplating moving to another state, you are well advised to do so BEFORE the child is born.
When a relationship or marriage is “on the rocks” and the woman is is pregnant and is considering leaving the state, she often is faced with the question whether to wait until the baby is born, or to leave before the birth of the child. It is wise to understand what your options are under the law.
Most states have laws parallel and follow the Federal Laws governing child custody jurisdiction (Federal Parental Kidnapping Prevention Act or "FPKPA"). Each state may have slight differences in their specific laws, but the federal laws (FPKPA) applies to all jurisdictions, and prevails over the laws in other states to the extent that they conflict with the federal law.
You will find that if you are pregnant and you are contemplating moving to another state, you may be well advised to do so BEFORE the child is born.
To help you understand, you should understand what the law in the state you are planning to move to states. California's law is called the "Uniform Child Custody Jurisdiction and Enforcement Act" (UCCJEA). This law conforms to the FPKPA.
Jurisdiction means that the court has the "power" and the "authority" to make decisions that effect people's rights. Under the UCCJEA, a California trial court has jurisdiction to make an initial custody determination only under one of the following bases (except in cases involving temporary emergencies):
(1) California is the child's home state at the start of the proceeding, or it was the home state within six months before that date, and a parent or a person acting as a parent continues to live here even though the child does not.
(2) An out-of-state court does not have jurisdiction, or the home-state court has declined to exercise jurisdiction on the ground that California is the more appropriate forum and the child and at least one parent (or a person acting as a parent) have significant connections with California beyond physical presence, and substantial evidence is available here about the child's relationships, care, safety, and education.
(3) All courts with jurisdiction under the first or second test have declined to exercise it on the ground that California is the more appropriate.
(4) No out-of-state court would have jurisdiction under the first three tests.
Once you are living in another state and your child has lived in the state for six (6) months, under the law, your state would have exclusive jurisdiction. If the child's biological father wanted to contest custody, he would have to go to court in the state you lived in, not where he lives. This of course could be a great strategical advantage to you in terms of costs, travel time and convenience. To be certain you understand, meet with a Family Law attorney as soon as possible to better understand your choices.
Q. I WAS DIVORCED IN ORANGE COUNTY AND I AM MOVING TO ARIZONA. CAN I CHANGE MY CUSTODY/VISITATION PLAN IN AN ARIZONA COURT?
All Judgments and prior orders concerning children may be changed provided there is a change in circumstances that you can demonstrate and the changes you propose are in the best interest of the minor child. Therefore, a move to another state does constitute a change in circumstance. Whether what you propose will be up to the court to decide.
The state court in which you obtained your divorce judgment is the court that has what is called "continuing jurisdiction" when it comes to children. Jurisdiction means that court has the "power" and the "authority" to make orders that effect your rights. It is "continuing" because it remains as the only court you can go to to make changes in the orders concerning your children.
If both you and your former spouse move out of the county or the state in which the court is located, either one of you will have to go back to that same court and make a formal motion to remove the jurisdiction and transfer it to the new county and/or state where the child or children now reside. In other words, if your divorce was in California, you will need a lawyer who is licensed to practice in the State of California.
We hope this information helps you understand your position. We suggest you meet with a Family Law attorney before you move out of state.
IF I HAVE NO ASSETS AND I DON'T WANT SUPPORT, IS THERE AN EASY WAY TO DIVORCE? DO I STILL NEED AN ATTORNEY?
In California, there is a process called "summary dissolution". If you qualify for a summary dissolution, you will have less paperwork to file and you will not have to appear in court. Neither you, nor your spouse will be represented by an attorney. You may be eligible for such a process if you and your spouse have agreed in writing to a division of your assets and debts and if the following conditions exist:
- You have been married for 5 years or less.
- You have no children from the marital relationship.
- Neither you, nor your spouse own a home or any other real estate.
- The value of all community property is less than $25,000.
- Your debt and your spouses' debt combined is not more than $5,000.
- Both you and your spouse give up your right to receive spousal support.
Both spouses must agree to all of the terms of a summary dissolution. Also, either of you can cancel it for any reason before the divorce is final. Further information on this simplified procedure may be available at your local court or on the California Courts Web site which may be easily accessed by going to our Resources page.
IF A GAY PERSON IS LEGALLY MARRIED IN ANOTHER STATE, WILL CALIFORNIA RECOGNIZE THE MARRIAGE?
Yes, effective January 1, 2010, when a new law becomes effective and amends Family Code* Section 308 [valid out-of-state marriage is valid in California] by adding subsection(b), which will provide that valid out-of-state marriage contracted before 11/5/08 is valid in California; and subsection (c), which will provide that parties to valid out-of-state marriages contracted after 11/5/08 shall have same rights, protections, and benefits, and shall be subject to same responsibilities, obligations, and duties, as are granted to and imposed on spouses, “ ‘with the sole exception of the designation of “ ‘marriage.’ ”
This new law provides that, notwithstanding any other provision of law, a marriage between two persons of the same sex contracted outside this state that would be valid by the laws of the jurisdiction in which the marriage was contracted is valid in this state if the marriage was contracted prior to November 5, 2008.
It further provides for the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, as specified, as are granted to and imposed upon spouses with the sole exception of the designation of “marriage.”
*[You may view the California Family Code by going to our Resource Page]