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Spousal Support

When determining spousal support in California, there are two main issues to be considered by the court and all parties. One is the amount of support to be awarded and two is the duration of support.

The family courts of California have a lot of discretion when it comes to determining how long a person will have to pay spousal support. As a general rule of thumb which does not have to be followed by the court, marriages of less than ten years will have to have spousal support paid for half the length of the marriage. For marriages of more than ten years, it’s anyone’s guess as to how long the court will decide spousal support is necessary.

Starting in the late 1990s, though, there was a trend among courts for spousal support’s duration to be linked to a transition period from married life to single life. The courts started not liking lifetime support.

In addition to their wide amount of discretion concerning the duration of spousal support, the courts have a lot of say in how much spousal support needs to be paid each month. In an attempt to lessen the court’s discretion, many counties have adopted guidelines that outline acceptable spousal support payments. These are still only guidelines that set a range, not set rules.

There are a variety of statutes for the courts to consider when determining spousal support. They need to consider:

  • The earning capacity of individuals. This is used to determine whether or not the parties will each be able to maintain the standard of living that was enjoyed during the marriage.
  • The extent to which the supported spouse contributed to the attainment of an education, training, a career position, or a license for the supporting party. As an example, if the husband footed the entire bill for his wife’s medical school education and then stopped working to stay at home with the kids while his wife worked, that needs to be taken into consideration.
  • The ability of the supporting spouse to pay spousal support
  • The needs of each party as established by the standard of living during the marriage
  • The financial obligations and assets of each party
  • Duration of the marriage

If you are considering a divorce or are in the middle of a fight over spousal support, contact the San Diego divorce lawyers of Fischer & Van Thiel at 858-935-6211.

More In Depth Information

For a more in depth discussion of Spousal Support please review the our discussion of Spousal support at FischerVanThielLaw.com/alimony, review our searchable Articles Database as well as our searchable FAQ’s.

Mike's Top FAQs About Divorce

401K plans and divorce

401K plans and divorce

Question Detail

If my spouse waives his right to my 401k plan, is there any circumstance that the court will still award him half or a portion of my 401k plan?

Answer

It is theoretically possible that a court can disturb an agreement to waive rights to property, but it is unlikely.  Courts will generally treat agreements as contracts, and thus are likely to strike an agreement only if it is unconscionable, induced by fraud, undue influence, duress or is against public policy. The judge cannot “reject,” nullify, or modify the provisions of an agreement merely because of his or her personal belief that a different arrangement should be made.

A marital settlement agreement, or MSA, can be used as a contract between spouses regarding the division of property that would otherwise be subject to community property laws. An MSA is subject to general contract laws, meaning that it can be found invalid if terms are against public policy (which includes, but is not limited to, (a) abrogating the statutory child support duty or impinging on the court’s jurisdiction to award child support, (b) limiting the court’s exercise of child custody jurisdiction, (c) “altering legal relations,” (d) “promoting dissolution,” and (e) providing for “fault”-based penalties at marriage dissolution) . The MSA can also be found invalid if entered into as a result of fraud, duress, menace, undue influence, or other factors which may make the agreement void or invalid.  Generally, an agreement such as the MSA is favored.  Hence, if there are no legal or equitable grounds for rescission or reformation it is binding on the parties and the court without express approval.

Posted in: Divorce, Family Law, Property Division

Can I get child support if I am not getting a divorce?

Can I get child support in California if I am not getting a divorce?

Question Detail

I have been separated for two years from my wife, and my kids live with me. Can I get support without filing for divorce in California? We have not been living together since our separation, and even file taxes separately.

Answer

You do not need to file for divorce in order to get support. You will need to go through the court to obtain a child support order so you will have to file something. You can contact your local Department of Child support services office and they can help you get started. So while you do not have to file for divorce, you can file for a legal separation. The court needs to know that you two have in fact separated and there is one parent who is the full time provides and therefore in need of support.

Posted in: Child Support, Divorce, Family Law

Can I move out with my daughter before the divorce in California?

Can I move out with my daughter before the divorce in California?

Question Detail

My wife and I are going to divorce, but we have not filed yet. We are always fighting, and my daughter, who is 7, is very stressed with the way we are living. Can I move out with her, if I do not move far away and let him see her all the time? He is not happy with my choice. Is this legal?

Answer

Yes, you can move out with your daughter, assuming there are no court orders already in place regarding custody and visitation. It is important to maintain frequent and continuing contact between the child and the other parent. When the court makes custody and visitation orders they will look highly upon the parent who facilitated contact with the child and the other parent. It is important to make the transition as easy as possible for the child.

Posted in: Divorce, Family Law

Is there a statute of limitations on owed child support?

Question: Is there a statute of limitations on owed child support?

Question Detail

An ex lover of mine (20 years ago) just approached me out of nowhere about getting tested to see if her son is my child. He is 20 and I live in California. I am trying to find the statue of limitations for child support if indeed I take the test and the child turns out to be mine.

Answer

Unless the mother has made a claim for child support with the welfare office or her local Department of child support services office, they cannot now collect from you on child support. Since he is no longer a minor child now that he is emancipated, there are no obligations for child support. You can get tested to see if you are the father, but you do not have to.

If the state has paid out welfare for the child, and it turns out that you are the Father, there can be some potential liability there with having to pay back the state the money they paid out. If this is not an issue, then they cannot now ask you to pay for child support.

 

Posted in: Enforcement, Family Law, Spousal Support / Alimony

Is the opinion of the child ever taken into consideration in a divorce?

Is the opinion of the child ever taken into consideration in a divorce?

Answer

Typically the Courts will take the child’s opinion into consideration at the age of 12. There is no set age, it depends on the maturity level of the child. If a child is of sufficient age and capacity to form an intelligent preference to custody the court can take it into consideration. It is important to note that all judges will rule for what is in the child’s best interests whether it be for the mother or the father.

Posted in: Child Custody, Divorce, Family Law

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