Monday, June 27, 2011

WHAT HAPPENS TO SPOUSAL SUPPORT WHEN A CHILD IS EMANCIPATED?

QUESTION: When a supported child becomes emancipated, does spousal support increase, if so, why, and by how much? We were married fo 25 years. Also is there a set time limit as to when receiving spouse should resume normal work?

MY RESPONSE: Until January 1, 2014 (the "sunset date" of the applicable legislation - unless the legislature extends the cutoff date), if child support terminates pursuant to Family Code Section 3901(a) [i.e, if your unmarried child turns 18, or is a full-time high school student, is not self-supporting, and completes the 12th grade or attains the age of 19, whichever occurs first], then pursuant to Family Code Section 4326, the supported spouse can file a Motion to modify spousal support upwards no later than six (6) months from the date the child support order terminates (with certain statutory exceptions).

That code section may later be extended, or it may expire on December 1, 2013, as the legislature deems appropriate.

If your use of the word "emancipated" refers to the child coming of age as addressed hereinabove, the supported spouse can timely seek and obtain relief pursuant to Family Code Section 3901(a).

Whereas that Section does not address the emancipation of the supported child occurs in another manner, i.e., through proceedings for emancipation, marrying, joining the military service, or becoming self-supporting, in the event that child support payments are ceased as a result of such emancipation, it would be wise for the supported spouse to file a Motion or Order to Show Cause to modify Spousal Support, within the six (6) month period after child support ceased, and argue to the Court that Family Code Section 4326 should, by analogy, be applicable to allow modification of Spousal Support based on cutoff of child support due to emancipation, as it is based on cutoff of child support because of a child coming of age.

There is no particular time limit as to when your ex-wife should become self supporting, but you could request that the Court issue a Gavron warning, if one has not been issued to your ex-wife already.

Your terminology "should resume normal work" implies that your ex-wife previously had a normal job.

At such time as you deem that your ex-wife should have "resumed normal work", you could file a Motion to terminate or modify spousal support (downwards), to have the Court issue a Gavron warning (if she wasn't so warned previously), and to have your ex-wife examined by a Vocational Training Consultant, in an effort to adduce evidence that income should be imputed to your ex-wife by the Court, with the intended result of minimizing or terminating her spousal support.

This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. | www.conviser.net | www.conviserfamilylaw.com |

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