I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: Am I eligible for alimony? How do I know if I am entitled to alimony? I was going to therapy in for two years because of the verbal abuse my husband put me through. We were married for 7 years.
ANSWER: You should retain an experienced Family Law Attorney to represent you in the divorce.
If, during your marriage, your husband earned significantly more than you earned, and still earns significantly more than you earn, you will likely be awarded alimony (Spousal Support).
If your husband is currently out of work, the Court could retain jurisdiction over the issue of Spousal Support, so that you could seek Spousal Support when he gets re-employed, or the Court could possibly impute income to your husband based on admissible evidence demonstrating his ability and opportunity to work, in which case the Court could award you Spousal Support based on income imputed to your husband.
During the divorce, you may file an OSC (Order to Show Cause), supported by your Income and Expense Declaration, to request an order of Temporary Sousal Support pending tral or settlement of the case.
Temporary Spousal Support is based on spousal support guidelines in effect in the county in which your divorce is filed; those guidelines are based primarily on your monthly income and your husband's monthly income.
Permanent Spousal Support is based on the many factors addressed in Family Code Section 4320, including but not limited to the marital standard of living. Whereas Temporary Spousal Support is based on a mathematical calculation, Permanent Spousal Support is not, but instead it is based on testimony, evidentiary facts and advocacy.
It is possible but by no means certain that the verbal abuse or your prior therapy might be considered in the setting of Permanent Spousal Support, under Family Code Section 4320(n), the "catch-all" provision: "Any other factors the court determines are just and equitable."
Family Code Section 4320(i) includes, as a factor to be considered by the court in ordering Spousal Support: "Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party ...".
The "abuse" addressed in Section 6211 is defined in Section 6203 as "(a) Intentionally or recklessly to cause or attempt to cause bidily injury; (b) Sexual assault; (c) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another; or (d) To engage in any behavior that has or could be enjoined persuant to Section 6320."
Section 6320 allows the court to issue an Ex Parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, destroying personal property, contacting directly or incirectly by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, or other named family or houshold members on a showing of good cause.
We have no-fault divorce in California, so only if the Court found your husband's abusive conduct and your resulting emotional distress to come within one of the above categories would the Court could consider those factors in ordering Spousal Support, unless it chose in its discretion to consider the verbal abuse and emotional harm under Section 6320(n).
For short-term marriages, i.e., marriages under 10 years of duration prior to separation, the Court generally awards Permanent Spousal Support for 1/2 of the duration of the marriage.
This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Divorce Lawyer and Family Law Attorney 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.
Showing posts with label spousal support. Show all posts
Showing posts with label spousal support. Show all posts
Saturday, April 2, 2011
Sunday, September 7, 2008
A CHANGE OF CIRCUMSTANCES MAY JUSTIFY A REDUCTION OF CHILD AND SPOUSAL SUPPORT; and BEWARE TO THE SPOUSE WHO CHOOSES TO BE UNDEREMPLOYED OR UNEMPLOYED
In Marriage of Mosley, a case decided in late Summer, 2008, the appellate court overturned a significantly unfair trial court ruling which refused the former husband a reduction in his child and spousal support because of the possiblity that the former husband might get a year-end bonus that could increase his income to or past the level of his pre-divorce income.
Both dad and mom were attorneys: dad was a real estate attorney, and mom was a stay-at-home mom for the parties' five children, although she had been an editor of law review at law school and she had previously worked for a prestigious law firm, Latham and Watkins.
Following the downturn of the real estate market, dad was laid off from his job at the real estate law firm. He took a position as house attorney for a homebuilder at a base salary substantially lower than his former income at the real estate firm, but with the possibility of a substantial discretionary bonus based on his performance and the performance of the homebuilder in this "down" market.
Dad sought a reduction in child and spousal support based on his change of circumstances. Also, since the trial court had given mom a "GAVRON" warning (a warning that she should make reasonable efforts to become self-supporting), Dad asked the trial court to impute income to mom. The trial court refused any of the relief that Dad sought. Dad appealed.
The MOSLEY case reads like a bar exam question, rich in the discussion of important authorities, including Marriage of OSTLER and SMITH, Marriage of RIDDLE, Marriage of ROSEVEAR, Marriage of GAVRON, Marriage of La BASS and MUNSIE, and Family Code Sections 4060, 4064 and 4320(l), among other authorities.
The appellate Court reversed the trial court, finding that the trial court's exercise of discretion exceeded the bounds of reason.
No future bonus was guaranteed by the homebuilder.
In a case where there might be income exceeding base salary, the trial court should structure a support order in two parts - base support (based on dad's base salary), and additional support comprising a percentage of any of dad's income over the figure upon which base support was calculated.
Mom does not have the right to divest herself of her earning ability at the expense of the minor children. When a parent decides not to seek employment to the best of his or her ability, the court must retain discretion to impute income -- otherwise, one parent by a unilateral decision could eliminate his or her own responsibility to contribute to the support of the children, causing the entire burden of supporting the children to fall upon the employed parent.
Also, the court must consider the stated (by the legislature) goal that supported spouses ultimately become self-supporting.
This writer notes that dad did not voluntarily quit his job at the real estate law firm. He was laid off due to the economic downturn caused at least in part by the collapse of the subprime lending industry. He took a job with potential, but no guarantee.
This writer also notes that Mom felt "entitled" to support, but even though she was educated as, and had held a job with a presigious law firm as an attorney, she never read the portion of the Judgment which provided the GAVRON order warning her to seek to become self-supporting.
In Marriage of LaBASS and MUNSIE, cited in the MOSLEY case, the mom was a college professor who chose to work only part time so that she could devote more time to the minor children. In that case, as in MOSLEY, the appellate court held that income could be imputed to an unemployed or underemployed parent - the minor children are entitled to be supported by BOTH parents.
This case comprises an important precedent regarding change of economic circumstances in these trying times, as well as imputation of income to a voluntarily underemployed or unemployed former spouse.
Written by Certified Family Law Specialist DONALD F. CONVISER, of Warner Center Law Offices, whose website may be found at www.conviser.net
Both dad and mom were attorneys: dad was a real estate attorney, and mom was a stay-at-home mom for the parties' five children, although she had been an editor of law review at law school and she had previously worked for a prestigious law firm, Latham and Watkins.
Following the downturn of the real estate market, dad was laid off from his job at the real estate law firm. He took a position as house attorney for a homebuilder at a base salary substantially lower than his former income at the real estate firm, but with the possibility of a substantial discretionary bonus based on his performance and the performance of the homebuilder in this "down" market.
Dad sought a reduction in child and spousal support based on his change of circumstances. Also, since the trial court had given mom a "GAVRON" warning (a warning that she should make reasonable efforts to become self-supporting), Dad asked the trial court to impute income to mom. The trial court refused any of the relief that Dad sought. Dad appealed.
The MOSLEY case reads like a bar exam question, rich in the discussion of important authorities, including Marriage of OSTLER and SMITH, Marriage of RIDDLE, Marriage of ROSEVEAR, Marriage of GAVRON, Marriage of La BASS and MUNSIE, and Family Code Sections 4060, 4064 and 4320(l), among other authorities.
The appellate Court reversed the trial court, finding that the trial court's exercise of discretion exceeded the bounds of reason.
No future bonus was guaranteed by the homebuilder.
In a case where there might be income exceeding base salary, the trial court should structure a support order in two parts - base support (based on dad's base salary), and additional support comprising a percentage of any of dad's income over the figure upon which base support was calculated.
Mom does not have the right to divest herself of her earning ability at the expense of the minor children. When a parent decides not to seek employment to the best of his or her ability, the court must retain discretion to impute income -- otherwise, one parent by a unilateral decision could eliminate his or her own responsibility to contribute to the support of the children, causing the entire burden of supporting the children to fall upon the employed parent.
Also, the court must consider the stated (by the legislature) goal that supported spouses ultimately become self-supporting.
This writer notes that dad did not voluntarily quit his job at the real estate law firm. He was laid off due to the economic downturn caused at least in part by the collapse of the subprime lending industry. He took a job with potential, but no guarantee.
This writer also notes that Mom felt "entitled" to support, but even though she was educated as, and had held a job with a presigious law firm as an attorney, she never read the portion of the Judgment which provided the GAVRON order warning her to seek to become self-supporting.
In Marriage of LaBASS and MUNSIE, cited in the MOSLEY case, the mom was a college professor who chose to work only part time so that she could devote more time to the minor children. In that case, as in MOSLEY, the appellate court held that income could be imputed to an unemployed or underemployed parent - the minor children are entitled to be supported by BOTH parents.
This case comprises an important precedent regarding change of economic circumstances in these trying times, as well as imputation of income to a voluntarily underemployed or unemployed former spouse.
Written by Certified Family Law Specialist DONALD F. CONVISER, of Warner Center Law Offices, whose website may be found at www.conviser.net
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