The attorneys at Jarvis & Krieger have represented hundreds of clients in both obtaining their original orders for Child and Spousal support, as well as modifying existing ones. You MUST get good experienced attorneys to represent in these complicated cases.
Child Support
Under California law, child support orders are modifiable "at any time as the court deems necessary." Therefore whatever judgment or order is currently in place is never considered "final."
There are generally two reasons why a court will change a current order. The most common is that there has been a change in circumstances. Also, there are circumstances where a current order does not comply with the "statewide uniform child support guideline" where application of the current formula and standards would yield a different amount of support.
What Constitutes a Change of Circumstances
There are no set rules and the determination is made on a case-by-case basis. Here is where a good attorney can persuade a court that a change in support orders is warranted.
Changes in Percentage of Visitation
Child support obligations goes up as the amount of visitation with the child goes down, and likewise, child support obligations goes down, as a parent sees more of their child. This is based on the theory that child care expenses rise for parent with his or her increased timeshare and likewise the other parent will experience child care savings.
Changes in Ability to Pay
If a parent loses a job or experiences a change in their financial condition, the court will look at those changed circumstances.
Noncustodial Parent's Increased Wealth
Moreover, because children are entitled to share in both parents' standard of living, the noncustodial parent's enhanced wealth often itself will be ground for increasing the child support level. This is the case even if the custodial parent experiences no change in his or her financial condition.
Extreme Financial Hardship
The court may modify child support by allowing a deduction from income of a parent who is suffering "extreme financial hardship" resulting from (i) extraordinary health expenses, (ii) uninsured catastrophic losses, or (iii) the birth or adoption of new children from another marriage or relationship.
The Court will Sometimes Look at "Earning Capacity" Not Actual Earnings:
The parents' actual earnings are not necessarily controlling . The court may consider the earning capacity of a parent and impute an income to the parent who may be unemployed or underemployed, where there is an ability and opportunity to work.
Income From Third Parties:
A parent's "circumstances" may change because a third party's income is now contributing to the parent's basic living expenses creating more income for the parent.
However, except in specific extraordinary cases, courts cannot consider the income of either parent's "subsequent spouse" or "nonmarital partner" when "determining or modifying child support."
How Does One Modify Existing Child Support Orders?
Modification proceedings must ordinarily be brought in the same court as the original order or judgment. One party will bring either a Order To Show Cause ("OSC") or notice of motion seeking modification.
Just prior to the hearing, both parties will file their Income and Expense Statements and all their financial information must be current as of the time of the hearing.
Unless you file an order shortening time, a hearing is generally held no less than 16 days after the initial filing.
SPOUSAL SUPPORT
Courts have discretion to grant, deny, or limit spousal support depending on the parties’ ability to provide for their own needs. Courts look at the parties’ unique circumstances in reference to the standard of living established during their marriages and their respective needs and abilities to pay.
With marriages of over ten years (considered a long-term marriage), the court can maintain lifetime jurisdiction over the matter. For marriages under ten years, the court will generally order support for ½ the length of the marriage.
In California, the court must consider and weigh 14 statutory factors – if the court considers these factors, it has broad discretion.
It is essential to have experienced and aggressive representation because the Court must be presented with evidence persuasively so in its broad discretion, the Court rules your way.
These are the factors the court MUST consider when ruling on spousal support issues. In doing so, the Court must consider these factors based on the standard of living established during the marriage:
1. Ability to maintain marital standard of living in light of earning capacities
2. Contributions to other spouse's education, training, etc.
3. Supporting spouse's ability to pay at the time of the support hearing.
4. "Needs" in light of marital standard of living.
5. Parties' assets and liabilities.
6. Duration of marriage.
7. Employability of custodial spouse vs. impact on children.
8. Age and health of the parties.
9. History of domestic violence.
10. Tax consequences. It is relevant, who pays the taxes, who gets the deduction, what is effect on net income.
11. Relative hardships.
12. Goal of self-support within a reasonable period of time. Generally this should be one-half the length of the marriage. However in marriages over ten years, the court will maintain lifetime jurisdiction over the matter.
13. Spousal abuse conviction (mandatory factor for support reduction/termination).
14. Other "just and equitable" factors.
Change in Support Orders
If there is a change in any of these factors, a motion can be brought to terminate or reduce support based on changed circumstances.
Termination of Spousal Support Orders
Fixed-term orders:
Spousal support orders for a fixed duration will simply end.
However, except upon the parties' written agreement to the contrary or a court order terminating support, the court retains spousal support jurisdiction indefinitely where the marriage has been of "long duration"—such as an marriage of over ten years.
Contingent orders:
An obligation to pay spousal support for a contingent period of time terminates on the happening of the specified contingency.
Remarriage/death:
Unless the parties have "otherwise agreed" in writing, a court-ordered spousal support obligation terminates upon either party's death or the supported party's remarriage.
These issues of Child and Spousal Support are raised during the initial divorce or custody proceeding, and as well as through motions to modify earlier orders. Bringing such a motion involves complicated legal issues and this is where having the experienced attorneys at Jarvis & Krieger can help. Jarvis & Krieger has represented clients in hundreds of these cases, and has succeeded in getting courts to recognize and appreciate the circumstances of their clients. In presenting their positions to the court, it is essential to have attorneys experienced in convincing courts to go their clients’ way. That is the kind of aggressive representation you will find at Jarvis & Krieger.
The Law Offices of Jarvis & Krieger serve Long Beach, Torrence, Lakewood, Anaheim, Seal Beach and all of Orange County.
