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#515 Child and spousal support in divorce

mp3 #515 Obtaining and Changing Child and Spousal Support in Marriage Dissolution (mp3 file)

Family Law matters are very complex. Many who try to handle these matters on their own quickly find themselves overwhelmed and out of favor with the courts. Often times costs are cited as the reason for self representation. However, most people with assets and retirement plans stand to lose significant amounts of money, or worse, lose custody of their children if they are not properly represented. Continue here to be referred to an experienced and insured Family Law attorney:

Marriages in the state of California are ended by dissolution (formerly called divorce). The marriage contract, in other words, is dissolved, freeing both spouses with no blame attached to either. When a marriage is dissolved, there are three kinds of support payments ordered by the court. The first is spousal support, once called alimony. The second is child support. Then there is family support.

Spousal support is the money a former spouse is ordered to pay the other spouse by the court. Child support is the money paid by either parent for the care, support, education, and upbringing of children from the marriage. The custodial parent, that is, the parent in whose custody the child remains, is usually paid child support by the non-custodial parent. Family support is support for the family unit and is ordered instead of spousal support and child support.

The amount of child support and spousal support varies in each individual case. The court has to decide whether support will be paid at all and also the amount of support which will be paid.

There are several things the court takes into consideration in making the decision to award support. In the case of spousal support, the court considers the following circumstances of the parties: the earning capacity of each spouse, the needs of each party, the obligations and assets, including the separate property of each, the length of the marriage, the ability of the supported spouse to work without interfering with taking care of the children, the time required for the supported spouse to obtain appropriate education, training and employment, the age and health of the parties, the standard of living of the parties, and any other factors the court believes to be fair.

Generally all of these things determine whether spousal support will be paid at all, -and the amount of support the court will order. For example, the more a spouse earns, the more support he or she may be required to pay. A spouse with a small income would not be expected to pay as much as one whose earnings are very high. If the spouse requesting support is ill or under doctor's orders not to work, more support may be required. On the other hand, if both have the ability to earn a living and support themselves, less support or no support will be awarded by the court. The court attempts to be as fair as it can to both parties.

The amount of time during which spousal support is paid also depends on a number of factors, including the ability of the spouse seeking support to work, past earning ability, future earning ability, his or her age, and the length of the marriage. Generally, the longer the marriage, the longer the period of support. A marriage of twenty years would therefore probably require a longer term of support than a marriage of five years.

Generally, spousal support ends when the spouse receiving the payments remarries or dies. In addition, it may also end or be substantially reduced if the spouse receiving- support cohabits with a person of the opposite sex.

Spousal support is not, however, awarded as punitive or compensatory damages for the failure of the marriage. The sole purpose for spousal support is to provide the means by which the supported spouse can rehabilitate himself or herself to a position of financial self-sufficiency.

These same factors are generally considered by the court in determining the amount of child support. However, child support may be awarded even if the parents were not married. The court considers the ability of each spouse to-earn a living, and the standard of living to which the family has been accustomed. The court also considers how much money is reasonably required to meet the child's needs, including shelter, food, clothing, education, and the percentage of time the child spends with each parent. The ability of the non-custodial parent to pay support is an important factor. In most cases child support stops when the child reaches the legal age of majority, 18, or 19 if a full time high school student living with a parent, or when the child dies, marries, or lives on his or her own, away from the custodial parent.

Either spouse may request a court hearing, to have the amount of support increased or decreased during or after the marriage dissolution, if the support order is modifiable. Child support is always modifiable during the child's minority. Spousal support can be made non-modifiable by agreement of the parties.

California law now has what is called a new and simplified way to change child support. Under this law, attorneys are not allowed at the court hearing, and no hearing is required if the parties agree on the requested change. By using this procedure, you can ask for an increase in child support if you are presently receiving it from the other parent by reason of a court order, or, if you are paying child support under a court order and have had a drop in your earnings, you can ask that there be a new order for a lower amount of child support.

This procedure can be used by a parent only once a year and the increase or decrease can only be ten percent a year, but if the parent needs the change because of a sudden large drop in earnings, the procedure can be used at any time and is not limited to ten percent.

How do you ask for a change under this procedure? First, you may go to or write to the superior court clerk's office in the superior court in the county where the order was issued. Ask the clerk for a packet of forms to let you change child support the new simplified way. There is usually a small charge for these papers. You will be given a series of forms to fill out, and most importantly, an information sheet which will give you detailed, step by step instructions on how to fill out the forms and what you must do before the court will consider your request.

If you choose this method of changing child support, neither you nor the other parent may be represented in court by an attorney. You may, however, seek the advice of an attorney to help you decide if this is the best method to use, or to help you in following the instructions for using this procedure. Once the other parent is notified of your request, he or she has the option of doing one of three things: (1) if the other parent does nothing, your request will be granted and become the new court order: (2) the other parent can respond to your request by filling out and filing with the court certain papers, which you must send to the other parent along with your notice of the request for change. If this happens it will be necessary to have a court hearing to determine the need for change in the amount of support: or (3) he or she may get an attorney, in which case, all further proceedings will be under the standard method of changing child support and, in that case, you may decide that you would also like to have an attorney representing you.

What should you do if you receive a notice of request to change child support? You have the same three choices: you can do nothing, in which case the court will issue a new order changing the amount of child support as shown on the copy of the proposed order which you received. Or, if you do not agree with the proposed change, you can follow the instructions in the information sheet which you received with the notice of request to change child support order, which will result in a court hearing to determine whether or not a change should be made. Finally, you may get an attorney to represent you, which will change the proceedings to the traditional method, in which both parties can be represented by counsel who will appear in court before a decision is made on whether or not child support should be changed. Remember, under the simplified method attorneys are not involved and you will appear in court personally if a hearing is necessary.

Support for a spouse or children may cost a large sum over the years. Legal representation to protect your rights may be a good investment.

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