1901 FIRST AVENUE | SUITE 265 | SAN DIEGO | CALIFORNIA | 92101

CALL TODAY:

 

619-234-0235

Key Issues in Family Law

- Support

  • Child Support (Click to expand)

    California Child Support is calculated using the "Guideline Formula." in Family Code section 4055. A review of the statute and formula quickly explains why the Family Law judicial officers (Judges and Commissioners) in San Diego, El Cajon, Chula Vista and North County courts use computers to determine child support. While there are publicly available calculators available on the Internet, including the state's Department of Child Support Services (DCSS) website calculator, Raskin Law Office advises that you get advice from a qualified attorney familiar with these support calculations.

     

    In the most general terms, the formula relies on "Net" income of the parties, the number of children, and the time the child/children spend with each  parent. For those with varying schedules and/or varying incomes, the court will try to fairly determine monthly averages and make an order of a consistent amount for each month. (If a significant portion of a parent's income is based on variable factors like bonuses or commissions, there are particular means to determine automatic percentages of the variable portion of income as support.)

     

    The percentage of parenting time component of child support, and demands for particular percentage numbers by parties, often exposes an unwitting parent's real desire solely to impact child support with the schedule demands. Even if that is not the intention, Raskin Law Office advises that parties not discuss parenting plans in terms of percent.  It is not helpful in determine days and times the child/children are with a particular parent, and is likely going to cause the court to question the benefit of the request to the child/children. (Remember that, in child custody & visitation, the court is making its decision based only on the best interest of the child/children. A parent proclaiming that they "want at least 40%!" or "50/50!" appears to have a (legally improper) motive for schedule demands.  The sequence of hearings with nearly every Family Law judicial officer in San Diego, El Cajon, Chula Vista and North County, is intentionally structured to determine the best schedule for the child/children before the court hears argument on the issues of income and support. Raskin Law Office often saves clients significant litigation costs by providing appropriate legal counsel  before and in addition to representing clients in litigation. Confidential and relevant counsel is usually the most cost-saving attorney time for which a client pays his/her lawyer.  There are many lawyers that fail their clients by leaping to costly (profitable) litigation without providing the client with objective counsel regarding the facts and law in their case, before and during litigation.

     

    At Raskin Law Office, clients can perform meaningful and informed "what-if" scenarios regarding the impact of sharing plans on child support. While clients will receive informed and specific advice to their situation, experience shows a few things that are usually surprising to clients:

     

    1-A 50/50 sharing schedule almost never means zero child support.

     

    2-Trying to tweak the schedule to increase "percentages" usually has so little impact on support amounts compared to the cost of providing for the child for that additional period of time, it is often not worth the cost of "battle" in terms of disruption to the child, acrimony between parties, and - most importantly - legal fees and costs.  Many lawyers are all too happy to earn thousands of dollars in attorney fees, to fight for a schedule that changes child support less than $100/month and requires their client to spend hundreds more each month actually caring for the child.  (There may be a number of very strong reasons to demand certain schedule parameters - even if the impact on support is not significant; Raskin Law Office wants you to understand the whole picture. Put simply, if your motive is increasing the convenience of the child/reducing the impact on the child's routine of having two homes, then the impact on support likely will not matter. If your motive is to manipulate the support amount {up or down}, good legal counsel may reveal that it is not financially prudent.)

     

    3-"I'll just quit my job and he/she won't get a dime!" This unfortunate sense of desperation often comes from a client frustrated by the legal obligations of support and usually a lack of understanding of his/her rights in the long process of getting both parents to reaching their income potential. With the "Imputation of Income" available to the courts, the few parents that actually deliver on this threat likely find themselves remaining obligated to pay support based on what they could be earning, whether they choose to earn it or not. Anyone contemplating such a tactic should consult an experienced family law attorney before making any decision or quitting their job.

     

    4-"If we impute income on [the other parent], then I won't have to pay support!" ("Income" is addressed in the tab below) Depending on the income of the high earner, the parenting schedule best for the child/children, the income of the low earner, and the provable income capacity of the low earner (the basis for "imputation"), the impact of imputation of income may be substantial or nearly meaningless.  This is a consideration to be addressed with an experienced Family Law attorney.

  • Spousal Support (Click to expand)

    Spousal Support is a unique part of the marriage "contract."  Regardless whether parties to a marriage knew it when they married, the state of California imposes certain obligations on married parties. One of many of those obligations is to support the other spouse.  Unlike other "business" relationships like a partnership, the obligation continues after the end of the marriage. There are a number of factors that the Court must consider at trial to determine spousal support (Family Code section 4320 lists them). Because recently separated parties often cannot yet present evidence on all of the factors, the  Family Law judicial officers (Judges and Commissioners) in San Diego, El Cajon, Chula Vista and North County courts are able to use a "shortcut" formula for temporary orders of spousal support while the case is ongoing. You should seek the advice of an experienced family lawyer on the issue of spousal support.

     

    Regardless what the initial spousal support amount is, both spouses have an obligation to seek their earning potential.  It is fairly well known that a long term marriage where one spouse devoted her/his energies maintaining the home and raising children while the other advanced a career that led to higher income is subject to spousal support jurisdiction for an "indefinite" period of time.  This term often causes tremendous grief for the higher income spouse and can also cause the recipient to fail to recognize his/her obligations to reach his/her income capacity.  Raskin Law Office has learned through experience with many clients the confusion and perils associated with either party confusing "indefinite" duration of spousal support with the term "infinite"  duration of spousal support. The "indefinite" term is a limitation for long-term marriages and spousal support orders; it is impossible for the court to foresee with a crystal ball when the recipient of spousal support will or should be ready for it to end. There are some cases where it will not end.  However, a significant number of "long-term" marriages ultimately result in the court ending spousal support. The recipient remains obligated to try to become self- supporting.

     

    Both parties need guidance in navigating this challenging and often confusing area of Family Law.  Unlike child support, predicting what the court will order is not as simple as running a computer program.  The weighing of the several factors of Family Code section 4320 leaves a lot of room for argument by the parties about the appropriate amount, and as lot of uncertainty about what the outcome will be.  Before arguing a spousal support issue or modification of spousal support after judgment, obtain the input of an experienced family law attorney.

     

  • "Income" (Click to expand)

    The "Income" used in the child support formula is "Net Disposable Income" ("Net").  This number is based on gross income with deductions for federal, state,  and local taxes, along with deductions for (most) health insurance premiums, union dues , mandatory retirement contributions (not 401(k)/IRA!), and miscellaneous other  deductions (some of which are subject to the court's discretion). It is the process of converting gross income into Net Disposable Income (a legal term existing only in support calculations in Family Court)  that causes significant confusion and error by those using  "Child Support Calculators" online.

     

    The Family Code definition of Income (for support purposes) is not the same as Federal or state taxable income. The Family Law judicial officer is entitled to, and should, review all sources of money coming into either party's control, and also benefits to the parties where their expenses are paid by others (perhaps a business or family members).

     

    You should review income issues and concerns with your attorney and be candid in all your discussions. Determination of income for the purposes of support can be very complex where either party has controlling interest in a business, is involved in (unreported) cash sales transactions, has routine payments from family/friends to assist in living expenses, or receives other non-wage sources of income.

     

     

     

Copyright © 2005-2015 Raskin Law Office. All Rights Reserved.

 

This Website is not legal advice. It is not a substitute for legal advice.  The information presented in this web site should be viewed only as a general summary of each topic and not be construed as legal advice. Legal counsel should be sought for the answers to specific legal questions. Reviewing this website does not create an attorney-client relationship.  Submitting an email. other communication, or contacting Raskin Law Office does not  create an attorney-client relationship.  Communications through this website are not encrypted.  While Raskin Law Office will maintain confidentiality of information it receives, you should not consider the communications secure in transit on the Internet.

 

Raskin Law Office routinely handles cases in the Chula Vista (South Bay) , El Cajon (East County) and Downtown San Diego (Sixth Avenue and Madge Bradley) Courthouses.  While Raskin Law Office handles several cases in the North County (Vista) courthouse, Mr. Raskin reviews with potential clients the costs and benefits of Raskin Law Office handling North County cases. Raskin Law Office never loses sight of the need for cost-effective, efficient representation of clients - regardless of their resources.

 

IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed in this communication (or in any attachment).