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Can Alimony be Modified in California?

When a final divorce decree is issued, one of the spouses may be awarded alimony. Too many times, those who are paying alimony, and those who are receiving alimony believe the amount awarded is the "final" amount and that amount is paid until the judgment is released. However, California courts do recognize in some cases, once an order has been established, there may be valid reasons to request the order be modified.

What Circumstances Can Lead to Modification of Alimony?

The first thing to understand is an alimony, or spousal support order as it is known, may only be modified if specific conditions are met. Spousal support payments are not ordered randomly — there are specific criteria which must be met before a judge will include spousal support in a divorce settlement. The specific criteria are included in California Family Code Section 4320. Some of the circumstances which would allow you to make changes in spousal support include:
  • Income Changes — if the spouse receiving alimony has an in income of greater than 10 percent, there may be grounds for requesting a modification. The paying spouse who has the same situation may also request an alimony modification.
  • Living Situation — if the spouse receiving alimony begins cohabitation, there may be grounds to request a modification of alimony orders. Additionally, if the paying spouse has had a change such as a new dependent, they may also request a modification of support.
  • Failure to Exert Effort to Become Self-Sufficient — one of the characteristics of spousal support is it is to serve as a bridge unless there are circumstances which make it impossible for the receiving spouse to gain employment. In these cases, it may be necessary to request the court issue a "Gavron" warning which stemmed from Marriage of Gavron, 203 Cal. App. 3d 705, 711-712 (Cal. App. 2d Dist. 1988). This case was brought when a spouse who was receiving a substantial monthly alimony payment refused to seek employment over an extended period of time. This option is available when the court has not ordered permanent alimony payments.
There may be other circumstances which could warrant a modification of alimony, you should speak with a skilled family law attorney if need to either request an increase in alimony payments, or you are seeking a decrease in payments.

Alimony Modification Process in California

Assuming the court has retained the jurisdiction necessary to hear a case for modification of alimony, the person requesting the modification will be required to fill out the following forms:
  • Spousal or Partner Support Declaration Attachment(Form FL-157 ) – this form is optional but may help you prove the reasons why a modification is needed
  • Declaration(Form MC-030 ) or an Attached Declaration (Form MC-031 ) would be used if more information is necessary to support your request
While it may be possible for you to fill out these forms on your own, the challenge is making sure the arguments you are putting forth will sway the judge to find in your favor. This is one reason why it is helpful to work with a certified family law attorney in all matters which require court intervention.

Things to Avoid When Requesting a Modification of Alimony in California

While a modification of an alimony order may be made at any time, it is important to make sure you have the legal grounds to do so. There are other things you should be aware of when filing for a modification of spousal support including:
  • You should continue making payments if you are the person paying. This is important because a failure to make payments could result in your being held in contempt of court.
  • You should file a modification request as soon as you have identified the legal conditions have been met. Should an order for modification be issued, it will not be retroactive, the new order will only be in effect once the court has ordered or approved the change.
  • Do not modify your payments based on a verbal agreement between the two involved parties. Even if you have agreed to a change, it must be changed within the court system.
It is always important to protect yourself during the modification process, so you do not face additional legal challenges associated with non-payment or partial payments of alimony. Seek legal guidance if you have any questions regarding payments of alimony.

Experience Matters When Dealing with Alimony Modifications

When you are requesting a modification of alimony, it is important to have the proper documentation and proof needed to justify the request. While it is always possible to have the alimony order modified in California, if you do not have the legal basis to do so, it will be denied. Spousal support payments are typically designed to ensure a person can maintain their standard of living following the dissolution of a marriage. However, when the paying spouse is facing challenges making payments, or the receiving spouse is unable to make ends meet, there may be grounds for changing the payments. You will not know if your situation warrants a modification until you speak with an experienced California alimony modification attorney. Hiring an experienced family law firm can make a difference between having your request approved or denied. That is because an experienced attorney can help you determine if you have the legal grounds needed to request a modification. If we determine you have the legal basis for a modification, we will help you gather the documentation, fill out the required court forms so they are accurate and represent your interests in court.  To talk to our lawyer about your family law issue in a free telephone consultation, please call our office at 619-304-0418 or an email. We provide services to individuals throughout the San Diego County area and help them reach a resolution on all types of family law matters. Contact The Law Offices of Steven M. Bishop, Attorney at Law, A California Corporation at (619) 299-9780 if you have questions about your current alimony. Let us help you with requesting a modification.  

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Types of Property that are Eligible for Division in a Divorce

California is a community property state. This means during a divorce, the assets of the marital estate are divided equally, as are the debts. However, what is not as clear is what is considered part of the marital estate. Under California Family Code 750 Section 3 the definition of the marital estate is more clearly defined. However, this does not mean that all property is considered community property.

Property and Debt Acquired During a Marriage

In general, when any asset is acquired during a marriage it is considered to be community property. This includes:
  • Wages and Benefits
  • Lottery Winnings
  • Business Ownership
  • Real Estate
  • Bank Accounts
  • Retirement Accounts
These assets would be divisible equally between the spouses at the time of a divorce in California.

Understanding Sole Property in California

Separate (or sole) property may also be owned by a spouse in a California marriage. There is a narrow standard for this category of property. To be considered sole property, the spouse must show the property was gifted to them, was acquired from an inheritance, or was part of a personal injury compensation settlement. Other sole property may be identified as agreed upon by the partners. Generally, this means the partners have either a post-nuptial or a prenuptial agreement in place. Property which either party owned prior to the marriage may also be considered sole property under California Code § 770. There is one other category of sole property which couples should be aware of. Any debt or asset acquired following the parties physically separating from each other during the marriage would also be considered sole property.

Commingled Marital Property

Spouses often do not understand community property statutes and inadvertently wind-up using funds which might otherwise be considered sole property for property which becomes part of the marital estate. Some examples of this include:
  • Pension and Retirement Accounts — any funds which are in a pension or retirement account at the start of the marriage are considered sole property. However, if you withdraw funds from these accounts during your marriage and deposit the proceeds in a jointly held bank account, they are then considered community property. The difference in value between the accounts at the time of the marriage, and upon the dissolution is also considered community property. Funds in this case which are owed to the non-contributing spouse would be divided through a Qualified Domestic Relations Order (QDRO).
  • Real Estate Liquidations — if one spouse owned a piece of property coming into the marriage and subsequently sells the property the proceeds may be deposited into an account in only their name and remain sole property. However, if the proceeds are used as a down payment on another property, the new property becomes part of the marital estate if the payments on the property from funds either partner earns, then the equity in the property is considered community property.
As you can see, community property rules are confusing which is why a couple who is in the process of a divorce must seek competent legal assistance. Debt and property, including business which is part of the marital estate must be carefully reviewed.

Post Nuptial and Prenuptial Agreements and Community Property

Another factor which must be considered when dividing property in a community property state is what agreements exist between the spouses. In some cases, there are agreements which were entered into legally which bind the parties. Unless there are instances of fraud or coercion, these agreements will further dictate the division of property. Some examples include:
  • Debt incurred by one spouse — either spouse may elect to purchase a vehicle or other large-ticket item which requires a loan. In these cases, the spouses may have an agreement in which one party agrees to be legally liable for the loan. These agreements, unless they are forced upon the spouse are legal and would eliminate one spouse's liability.
  • Assets acquired by one spouse — when a spouse buys a business, invests in artwork, or buys an antique, they may have a reason for holding it as sole property. If the spouses have a legal document specifying that for legal purposes the property is designated as sole property, the court will typically uphold these agreements.
Prenups, and post-nuptial agreements can often cause complications in divorce proceedings. Make sure your attorney is informed of any agreements which exist which may have an impact on the overall value of your marital estate.

Always Seek Legal Help When Dealing with Property of a Marriage

Most people are not aware of how the courts view marital property under California law. Individuals should take steps to ensure their sole property does not become commingled during their marriage to protect their own interests. It is also important to remember that if you should acquire property during a period when you are separated from your spouse you should make a note of the date of your separation to ensure you are credited with being the sole owner.

Student Loans in Community Property States

Remember, there may be different rules which apply to student loans. When a spouse takes out a student loan during a marriage, the rules may be applied differently. If the spouse co-signed on the loan, they are liable for repayment of the loan. If the loan was used and as a result the student's income improved the family's financial picture, then both spouses may be liable for repayment. However, if the spouse who used the loan defaulted on the loan and the other spouse was not a cosigner, they may not have any liability. If one spouse entered the marriage with outstanding student debt, that debt does not become part of the marital estate and remains the sole liability of the spouse who took out the loan. Talk to your attorney about any student loans which were taken out during your marriage, so you understand when you may be responsible for part of the loan.

Want to Know More About Community Property?

To learn more about your specific options regarding community property and your divorce, call our San Diego office at 619-304-0418 or send us an email.  We will arrange a free phone consultation with Attorney Bishop, and he can help you understand sole and community property and how it may apply to you.  

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Is My Spouse Hiding Assets During Our Divorce?

Marital property — this is one of the most misunderstood factors in a California divorce.  California is a community property state — this means property and debt is generally equally divided between each spouse. According to the courts in California, when a couple divorces, marital property is considered equally owned by both spouses. Since each spouse or partner owns one-half of the property, they also are responsible for one half of the debt. There are complicated rules that pertain to sole owned and community property during a divorce which make it imperative for you to hire an attorney who understands California law.

Marital Property Versus Sole Property in California

There are two categories of assets and debts which a couple may have at the time of their divorce. Marital assets are those assets which are accumulated during the marriage. Marital debt is the debt accumulated during the marriage. However, there is also property and debt which may be classified as sole property and debt including:
  • Inheritances — any inheritance a person may receive while married is classified as a sole asset. This means upon the dissolution of a marriage; the property is not divisible between the two partners.
  • Property owned at time of marriage — if a person owns property at the beginning of the marriage, this property may not be included in community property. There are exceptions to this: For example if a partner owns a property or business at the time of the marriage and no additional investments in the property or business were made during the marriage from community property funds, they may remain classified as sole property. However, if there were investments during the marriage, the value of the property at the time of the marriage, less the current value may be classified as community property.
  • Proceeds from Personal Injury Cases — if one partner settles a personal injury lawsuit, the value of the lawsuit may be classified as a sole asset.
  • Property Defined in Pre or Post Nuptial Agreements — when a couple enters into a post or prenuptial agreement they often classify certain property as sole owned. This may be presented to the court as proof of one party owning the property in cases where property division is being considered.
  • Debts Which the Spouse had When Entering a Marriage — student loans, automobile loans, etc. which a spouse had prior to being married may be classified as sole debt.
You should speak with a California property division attorney during your divorce to make sure you understand the complexities involved in community property law.

Financial Disclosures During a Divorce Proceeding

Both parties will be required to submit individual financial disclosures during their divorce proceedings. These disclosures cover all assets including life insurance policies, IRA, and other retirement accounts, as well as bank and brokerage accounts. The court requires the person submitting such a disclosure to attest as to its truthfulness and completeness. Still, there may be times when one spouse attempts to diminish the value of the assets of the marriage. There are several ways this may be done including:
  • Liquidating bank or brokerage accounts — withdrawing funds from accounts as a means of hiding the value of the account is a common tactic that is used to minimize the value of the marital estate.
  • Investing in Cryptocurrencies — today with increasing availability of cryptocurrency, one spouse may make a sudden investment in these currencies. There is no statement which is issued by the company holding this asset. This may be done in advance of considering a divorce as a means of shielding the spouse from disclosing the asset.
  • Business Investments — in advance of filing for divorce, one partner may withdraw funds from a bank account or other investment account and put the funds into a business which has been designated as sole property. This is a method used to minimize the value of the marital assets.
  • Other Investments — rare books, artwork, or other unexpected investments in antiques may be used as a way of hiding assets during a divorce proceeding.
  • Unexplained Loans — your spouse may make unexpected loans to friends and family as a method of hiding the true cash value of your marital estate.
If you suspect your spouse may be hiding assets, it is important you advise your attorney of this fact immediately. There are ways to ensure there is full disclosure including looking back at prior account balances. Always bear in mind these methods are often utilized well in advance of a divorce filing — you may stop seeing certain bank or brokerage statements, notice your spouse is getting less in bonus money or commissions, or has taken a sudden interest in unregulated investments.

Hiding Assets or Shielding is Illegal

When a couple files for divorce, each is entitled to an even division of property as well as obligated to repay debt which is part of their marital estate. Anything less than full disclosure is illegal, and the courts may hold the responsible party in contempt of court, or the offending party may face other penalties imposed by the court. You should never settle for less than the full value of your marital estate because your partner is attempting to hide assets. When you are involved in a divorce where a significant portion of your marital estate is deemed community property, one spouse may be attempting to shield some of these assets. You need an attorney who will thoroughly investigate any claims of hidden assets to ensure you get the portion of the marital estate you are entitled to under California law. Be certain to tell your lawyer about any assets you believe may have been wrongfully liquidated or transferred to others in the months leading up to your divorce. Remember, the higher the value of your marital estate, the more likely your spouse is to attempt to shield assets.

We Can Help With High Value Divorces and Hidden Assets

To speak to us about your property division case, please call the San Diego offices of Attorney Stephen Bishop at 619-304-0418 or send us an email to arrange a free phone consultation. We can help ensure your spouse is making a full disclosure of all assets which should be part of your marital estate to make sure you get your rightful share of your marital estate.

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Child Support Considerations for Same-Sex Couples

Child support and custody is always an issue when a couple is in the process of getting a divorce. Seldom do both partners agree on which parent should have custody, and there is seldom agreement about support matters. In California, child support is calculated using a formula which includes the income of both parents including wages, disability payments, and unemployment benefits. Mandatory fees like retirement contributions and union dues are deducted from these amounts. Other deductions such as child support payments from other children, spousal support payments, and job-related expenses may also be deducted. While this may seem crystal clear in most divorces, there is often a question as to how these impact same-sex couples.

Same Sex Couples and Child Support in California

There are often questions regarding support payments and custody when it comes to same-sex couples. One parent generally is not biologically related to the child or children in question. However, same-sex couples in California have the same rights and the same financial obligations to their children as their non-same-sex peers. This is largely in part due to a California Supreme Court ruling in which the court determined the children of a same-sex couple have the right to the care and attention of both parents, even when only one parent is biologically tied to the child. This type of ruling means both parents, regardless of sex, have a financial obligation to the child until they reach the age of 18, or until the child reaches 19 if they are still full-time students.

How Child Support is Calculated in Same Sex Divorces

The courts have an obligation to ensure both parents are treated the same financially for purposes of establishing child support payments. As such, there is an elaborate calculation which determines how much support each parent is able to provide. The elements of this calculation are:
  • Total Income — the income of both parents will be calculated, and a formula will be used to determine their gross income. Mandatory deductions such as taxes, union dues and work-related expenses will be taken into consideration.
  • Health Care/Insurance Expenses — medical care or insurance premiums will also be taken into consideration. If a child has medical issues which are not covered by insurance, this will also be included in the formula.
  • Educational and Daycare Expenses — the costs associated with the child's education and care while a parent works may also be included in the formula for determining support.
  • Prior Obligations for Support – if either parent is obligated to pay child support for other children this is also taken into consideration when determining how much support should be paid by one parent.
  • Amount of Time with Child — in general, child support payments are made to the custodial parent. In some cases, especially those involving joint custody, there will simply be a division of expenses incurred for each parent in raising the child.
  • Other Factors — the court may review other facts which are relevant including any special needs of the child, the parent's physical condition and age, etc.
The general formula for child support payments looks like this: CS = K (HN - (H%) (TN))
  • CS means child support
  • K means combined income of both parents
  • HN means net disposable income (high net)
  • H% means time each parent spends with child
  • TN means total net monthly disposable income of parents
You should speak with your divorce attorney or the attorney dealing with support disputes about how much child support you may be entitled to receive or may be required to pay. These numbers may also be impacted by other factors per California Family Code Section 4057(a).

Modifying Support Orders in California

There are certain factors which may result in a change being requested in a California child support order. Keep in mind, the decision to request modification must be based on factors which directly impact the person paying support or the parent receiving support. Some valid reasons for requesting a modification of a child support order include:
  • Changes in Income — either parent who has an income change of more than 10 percent higher or lower may request a modification for support. This includes a parent who has lost their job, or a promotion.
  • Changes in Expenses — expenses for children may change in regard to their needs for daycare, education, or health care. If there is a steep increase or decrease in these expenses, it may be worthwhile looking at a support modification.
  • Custodial or Visitation Changes — when the amount of time a child spends with one parent significantly changes, there may be a need to change the support order.
  • Additional Children — if one parent becomes a parent as a result of another relationship it may be necessary to request a modification.
  • Factors Changing from Original Order — when there are changes in any of the original factors used to set child support payments, a parent may request a modification.
It is important to remember a child support modification is not automatic. Requesting a modification of a child support order should be handled by a skilled family law attorney after a review of the facts.

Non-Payment of Court-Ordered Support

Under California laws, non-payment of child support is a serious offense. Those who fail to make payments as ordered in a final judgment can face serious fines, and potentially may face jail time. A contempt of court charge may be filed against any parent failing to make timely support payments. In addition to contempt charges, a non-paying parent may also face other consequences. Some of these include suspension of driving rights, denying a passport renewal, liens against their homes, and wage garnishments. When you are entitled to receive child support payments, we can help you hold a non-paying parent accountable. Parents who are facing any challenges regarding child support need to know what options are available to them. Contact Steven M. Bishop,  a specialist in family law, as certified by the California Board of Legal Specialization at 619-304-0418 or send an email to arrange your free telephone consultation.  

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Ways Business Debt Can Affect Your California Divorce

Divorces are messy. California is a community property state which can further complicate an already complicated situation. In community property states, in general, any assets or debts accumulated during the marriage are divided evenly between the two parties with the exception of property which was acquired prior to the marriage or acquired by one party as the result of an inheritance, or a personal injury lawsuit settlement.

Business Finances Can Complicate Divorces

When there is a business involved, the entire situation becomes far more difficult: Not only are there assets which must be dealt with, but there are also business loans and other debts to deal with. This is a common problem in which the already complicated high-asset divorce becomes even more complex The two areas in which business debt can impact a divorce include:
  • Business Loans — you may have taken a loan against your business assets to repair a roof, expand your home, or for other purposes which you believe enhance the value of a marital asset. However, this may not result in your spouse being responsible for half the debt.
  • Salary from Business — even if a portion of your salary from business is being used to repay the loan you took out for personal reasons, you may not use this reduced amount for consideration for spousal or child support obligations.
Both of these situations would result in your having higher debt following a divorce. This could result in a devastating financial picture as you move forward.

Avoiding Business Debt Problems During a Divorce

We already understand having a business can further complicate your divorce. However, there are some steps you can take to avoid being saddled with debt which should rightfully be divided between you and your spouse.  There are some steps you can take to ensure your business debt is equitably distributed during a divorce.

Avoid Commingling Personal and Business Funds

Your business funds and family funds should remain separated at all times. The only funds which should be placed in your personal accounts from a business account is your salary. In the event you borrow money using your business assets or your business you need to carefully document the use of funds. If you are borrowing money for personal reasons, make sure you carefully document the following:
  • How much money was borrowed from your business
  • What the purpose of borrowing funds was
  • Any amounts which were repaid from personal funds

Use of Business Funds Once Divorce Proceedings Begin

Once your divorce proceedings have started, you should avoid borrowing business funds to pay for personal expenses. Doing so could jeopardize the court's rulings on how much income you may have to acknowledge for purposes of calculating child and spousal support payments. You should continue to draw your normal salary from your business during your divorce proceedings. The more caution you use with business funds, the less likely your expenditures are to be questioned during these proceedings.

Consult with the Appropriate Professionals

Just like you hire a skilled family law attorney to assist you with a divorce, you should also consult with a financial advisor and a tax professional when dealing with business assets and debt. In many cases, it will require the expertise of a forensic accountant to assist in determining the value of your business. Make sure you provide them with any documentation which is requested so they may set a true value for your business.

High Value Divorce Complications

Even when you and your spouse agree you can no longer share your lives together, there can be serious disagreements over how assets and liabilities are divided during a divorce. If your business is considered "sole ownership" – meaning your spouse may have no right to the assets of the business, this does not make it less complicated if you have borrowed money against your business for personal reasons. A jointly owned business, and a solely owned business are treated in different manners for the purposes of divorce in California. In order for a business to be considered sole ownership, one of the following conditions must be met:
  • Ownership prior to marriage
  • Whether the business was inherited from another family member
  • Whether you and your spouse had a prenuptial or post-nuptial agreement
None of these factors may prevent your spouse from having a claim against the business. Some of the items which will be reviewed as part of your divorce settlement will include whether any of your family's funds were used to grow or invest in the business, whether your spouse provided any labor support during your marriage, and whether money taken from family funds was repaid during your marriage.

Avoid Taking Risks in a High Value Divorce

Anytime there is a business involved in a divorce proceeding, the ability to have a "simple" divorce becomes impossible. You want to work with an attorney who understands what is at risk and maintain as much control as possible over your business once your divorce is finalized. You also want to avoid having business debt that could cripple you financially as you start on a new path. Working with a skilled divorce attorney who has experience handling high value divorces with a business as an asset can help you overcome some of the challenges you will be facing. If you are in doubt regarding any financial decisions you are making during your divorce proceedings, speak with your attorney before doing anything. The courts will not look favorably upon you if there is an attempt to use personal funds for business reasons. Keep your business finances and your personal finances completely separate and make sure you do not liquidate any assets which may be considered joint property. Contact Attorney Steven M. Bishop to schedule a consultation today. Attorney Bishop is a Certified Specialist in Family Law, he can help you from the early planning stages to the final disposition. Do not take unnecessary risks that could put you in legal jeopardy. To schedule a consultation regarding your divorce, contact Attorney Bishop at (619) 304-0418 or complete our online  contact form.  

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How Can I Get the Costs of Private School Included in Child Support Payments?

Parents always want what's best for their children. This is an admirable sentiment, but it's subject to change when a family is going through a dissolution or a legal separation. That sounds a bit extreme, but it sometimes happens when one parent insists that the other parent pay their child's private school costs. California's family codes don't automatically include private school expenses as a factor in support calculations. As a parent, you have two ways to have those costs included in your child support payments.

  • Establish a private school payment agreement with your spouse.
  • Present evidence seeking a court order in favor of your private school payment request.
Parents simplify the process when they agree that one or both parents should share their child's private school costs. In some situations, financial concerns become a cooperation stumbling block, but you still have options. Even if an estranged spouse doesn't willingly agree to the added expenses, the court has the discretion to designate tuition as a reasonable child support expense. Of course, you must present evidence to substantiate your request.

A Certified Specialist in Family Law

Attorney Steven M. Bishop has helped many families resolve their child support issues before they become insurmountable. As a Certified Specialist in Family Law, Attorney Bishop has helped couples negotiate support arrangements for private schooling and other additional costs. When necessary, he prepares and presents your supporting evidence in Family Court. Attorney Bishop provides compassionate guidance and assistance as he works to resolve your most pressing issues.

How Much Does Private School Cost in California?

California has a history of litigation over child support and private school tuition. Parents rarely object to their child receiving a better quality education. Disagreements usually focus on cost. Tuition is the primary reason why joint or non-custodial parents rebel against paying for private school. Of course, it's in the best interests of the child, but it's usually a high-dollar child support add-on. The website Private School Review documents 2020/21 school year tuition costs throughout the state. They receive regular updates from schools that confirm their tuition costs. The current average annual cost for private school education in California is $14,718 per year. Tuition varies widely depending on the school and the grade.
  • Preschool: Ranges from a high of $47,000 to a low of $1,011
  • Elementary school: Average cost per year, $11,569 (Highest, $61,000, Lowest, $1,200)
  • High School: Average cost per year, $20,000 (Highest, $66,900, Lowest, $1,200)

What Does Child Support Pay For California?

California Family Law establishes specific child support goals under Statewide Uniform Guideline, §4050 - 4076. The provisions establish child support requirements that meet a child's need for housing, food, clothing, extracurricular activities, and other expenses. The guidelines also ensure that children receive financial support that's consistent with the state's high standard of living and high child-raising costs. The law presumes that the parent with the most physical responsibility devotes a substantial amount of their resources to raising their child. The guidelines include several additional child support standards.
  • A parent's primary obligation is to support their children "...according to the parent's circumstances and station in life."
  • Both parents are "mutually responsible" for support.
  • Support considers each parent's income and responsibility for the child.
  • Each parent should pay according to his/her ability.
  • The child's interests are the state's top priority.
  • Children should share both parents' standard of living.
  • Families should rely on private financial resources to meet their child's needs.
Under §4062, family courts have discretion in issuing orders that may include these and other additional items.
  • Child care costs while a parent works or enters a training or educational program to develop new employment skills
  • Reasonable uninsured health care costs
  • Costs for educational or special needs
  • Visitation travel expenses
This discretion opens the door for a parent to receive child support that includes private school tuition costs. As with many court cases, the party requesting consideration has the burden of proving the need.

Presenting a Case for Private School Support

Many parents feel that private school is a choice, not a requirement. If you can't convince your estranged spouse through sincere negotiation, you must persuade the court to find in your favor. You have several ways to plead your case. Your child's school administrators and teachers should be able to provide evidence to help you substantiate your claims.
  • Educational Stability: If your child is already in private school, transferring him or her to public school could have an adverse impact on their education. When a child switches schools, they lose touch with their friends and teachers. Considering the variation in learning standards and class offerings, a transfer could erase a child's educational and social progress.
  • Religious or Cultural Expectations: When your children attend a religious or culture-based school, it reinforces principles, traditions, and social behaviors they won't learn in other schools. It can also be a requirement of certain religions.
  • Special or Gifted Learning Needs: In a traditional public school, your gifted or special-needs child won't usually get the attention they require based on their learning capacity.
  • Your Active Involvement: As a parent, you interact with your child's teachers. You take on special duties, and you attend school functions. You are actively involved in your child's education. A move to a new school would alter that dynamic for both you and your child.
  • Family Tradition: If your older children had the benefit of attending a private school, a change in household status shouldn't change that tradition. It could affect your younger child's overall education as well as college prospects and future career possibilities.
  • Financial Means: When the other parent has the financial capability to pay private school costs, private school tuition won't cause undue economic strain. This complies with child support guidelines which mandate that "Children should share in the standard of living of both parents."
When you present a strong case, the court should accept your view that private school is a genuine obligation to your child. As both parents must share in the child's support, the court may issue an order for one or both spouses to share the additional costs.

Contact The Law Offices of Steven M. Bishop

If private schooling provides the best education for your child, you might be able to work out an agreement with your spouse. If you can't agree, the court will consider your evidence and make a decision. Either way, you should have a legal professional working on your behalf. Attorney Steven M. Bishop is a Certified Specialist in Family Law. He's helped clients resolve child support issues during negotiations and in court. To schedule a consultation, call our office at (619) 299-9780 or complete our Contact Form.

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Blended Families: How to Protect Your Assets

The legal boundaries that once defined marriage and family have gradually expanded over the years. These changes have made marriage and parenthood more inclusive and also more complicated. Marriage is now an exciting option for any couple who wants a full family life. It's often a challenging option as well. It's not unusual for a new marriage to create a blended family that includes newborns, stepchildren, multiple dads, and more than one mom. With so many shifts in obligations and responsibilities, some couples decide that it makes sense to protect their separately acquired assets rather than combine them.  If you're on the verge of creating a blended family, it probably feels natural to want to share your financial advantages. As you must consider your future, it also makes sense to retain some of your assets and take steps to protect them. It's important to finalize a financial plan before you settle into your new household. You and your future spouse must decide if and how you should protect your assets and what you need to do to ensure your desired outcome.   Attorney‌ ‌Steven‌ ‌M.‌ ‌Bishop‌‌ ‌understands‌ ‌that‌ it's important for couples to address financial issues before they begin a new marriage. As‌ ‌a‌ ‌Certified‌ ‌Specialist‌ ‌in‌ ‌Family‌ ‌Law,‌ he's seen what happens when couples fail to establish financial ground rules. Attorney Bishop believes that if you plan ahead of time, you can address your finances and begin your new family with one less complication. Here are a few things to consider.

1. You Should Consider a Premarital Agreement

In California, premarital agreements help you formalize your financial decisions and protect your assets. As you are entering what you likely anticipate will be a long-term relationship, you should try to make the process as stress-free as possible. California Family Code, Division 4, Part 5, Article 2 establishes the guidelines for premarital agreements. The codes give you a great deal of flexibility to create an agreement that works best for you, your partner, and your family.  Premarital agreements allow you to determine what happens with current and future interests in real and personal property. This includes current and future income and earnings.

2. You Must Be Open and Honest

To create a premarital agreement that accomplishes your goals, you must include financial arrangements that satisfy both parties. This requires openness, sharing, and honest communication about your financial concerns. Before you begin negotiating your agreement, gather all documents that confirm your real property, income, investments, retirement benefits, and other assets. Full disclosure is key to establishing an agreement that satisfies both spouses and holds up in court. Premarital agreements are generally enforceable, but they are revocable under these and other circumstances. 
  • One of the parties didn't execute the agreement voluntarily
  • The agreement was unconscionable, as defined under §1615 
  • One party didn't have full knowledge of the other party's assets

3. You Must Consider Every Member of the Family 

Marriage and family are no longer the narrowly-defined institutions they once were. In determining what ultimately happens with your assets, you must consider everyone within your family circle. California Family Codes give marital relationships and domestics partnerships virtually the same status. A legally married couple can be a man and a woman, two women, or two men. The parent/child relationship has gone through classification changes as well. Adults can become parents through natural childbirth, adoption, guardianship, or assistive reproduction. California's Uniform Parentage Act further expands family options by declaring that a child can have more than two parents. Exes, grandparents, and others gain legal rights and responsibilities based on a person's "presumed" parenthood status  Once you enter a legal partnership, you become bound by California Family Codes. Before you make any family-related decisions about your assets, you must understand and consider the rights and responsibilities of each parent for the children in your new blended household. 

4. You Must Consider The Children's Best Interests

If a family comes before a California Family Court, the court makes decisions based on the child's best interests. California courts accept most premarital agreements as they are written as long as they don't adversely affect a child's right to financial support. 

5. Change the Appropriate Supporting Documents 

As divorce, separation, and remarriage sometimes occur, you can't ignore the possibility of future changes in your blended family. That's why your life insurance policies, wills, trusts, and other accounts and financial instruments must mirror the terms of your premarital agreement. If you plan to insulate accounts and financial instruments from being considered part of your community estate, you must make the appropriate changes. 
  • Change policy and account beneficiaries, where allowed.
  • Consider choosing a neutral, unrelated party as the executor of your will. 
  • Before you acquire real property, consider whether you wish to include your spouse as a joint owner. 
  • Set up a living trust with a trustee to enforce decisions according to your instructions.

6. Complete Your Premarital Agreement and Sign it

Your premarital agreement can't just be a work in progress. You must formalize it in a properly executed format. Your goal should be to complete your agreement and sign it in time to become effective on your wedding day. To make sure your agreement fills all legal requirements, you should have a legal professional create the final version and retain a copy. You can save legal fees if you work together and establish the terms of your agreement ahead of time. 

Contact The Law Offices of Steven M. Bishop

Life gets complicated when you're establishing a household that blends two families. While you're planning a future for your new spouse and children, you must consider every alternative for yourself. Whether you want to finance your ongoing lifestyle or plan for your golden years, protecting your assets is a prudent move.  Attorney Steven M. Bishop has worked with couples experiencing every stage of marriage. He has helped many clients through the legal challenges they encountered during marriage and divorce. He recognizes the benefits of protecting your assets to ensure your future. As you prepare to form your blended family, contact Attorney Bishop if you need more information about protecting your assets. To schedule a consultation, call us at (619) 299-9780 or complete our Contact Form.  

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How The Length of Your Marriage May Affect Your Divorce in California

Divorces and legal separations are difficult for everyone involved. The idea of transitioning to a new life is usually unimaginable when you're ending a long-term marriage. The process often creates lifestyle changes and financial inequities between the two new households. These changes can be particularly devastating if one spouse stayed home to care for the family while the other built a career. California Family Codes consider the length of a marriage when ruling on divorces and separations. They provide solutions that anticipate how a divorce may leave one spouse with an unstable financial future. The court's overall goal is to ensure that both spouses maintain the standard of living they were used to doing the marriage. When long-term marriages dissolve, the solutions must meet a number of inherent challenges.

A Certified Specialist in Family Law

Attorney Steven M. Bishop understands how the length of your marriage influences spousal support payments and other key legal outcomes. As a Certified Specialist in Family Law, Attorney Bishop helps clients work through these and other difficult issues. He has assisted numerous couples in establishing agreements and working out complex details. He has helped his clients resolve their differences, both inside and outside the courtroom.

Marriages of "Long Duration"

California Family Court "...retains jurisdiction indefinitely…" when it considers a marriage one of long duration. This usually involves unions lasting 10 years or more. Unless divorcing or separating spouses agree to the contrary, the court has the discretion to issue a spousal support order based on perceived need. When ruling on a marriage of long duration, they also have the right to leave the order open-ended.  Final orders don't necessarily include a termination date. The court retains the authority to reassess and reevaluate all spousal support and community property issues in the future. Other than a few exceptions, all assets and liabilities go into a community estate. The court uses its discretion when dividing the estate between spouses. When spouses are exiting a marriage of long duration, the court's extended jurisdiction grants indefinite discretion to reassess or reevaluate any decision. Either spouse may appeal a decision or seek a modification.

Duration-Related Spousal Support Factors

California Family Codes address many of the spousal support factors that arise when a long-term marriage ends. §4320 (f)simply names "The duration of the marriage" as a factor. This brief mention is just one of the items under "Factors to be Considered in Ordering Support." Several of the described issues and circumstances demonstrate the court's need for wide discretion when ruling on a long-term marriage.

Earning Capacity

In awarding spousal support the court evaluates each spouse's ability to earn enough to maintain their previous living standard. The process considers their education, training, and skills in light of the existing job market. One important factor it considers is the effect of a spouse's devotion to "domestic duties." When spouses remain unemployed or underemployed for long periods, they often must retrain to re-enter the job market. Depending on the spouse's age, the available jobs won't necessarily provide a substantial enough income. When a young parent stays at home instead of working, it establishes an early financial gap between spouses. If they continue the roles over an extended period or a lifetime, the gap rarely closes. Typically, it becomes a problem if the couple divorces or separates. A Pew Research Center study of stay-at-home parents shows that the stay-at-home spouse scenario is fairly common. Their most recent study determined that 7% of male parents in the U.S. and 27% of female parents stay home to take care of their children. Some spouses remain in the home to care for aging parents. Whatever the reason for exiting the job market, long bouts of voluntary unemployment or underemployment often affect future employability. As AARP's  Working at 50+ page explains, there are plenty of jobs for people aged 50 and over, but they often require additional training. Over time, stay-at-home spouses age-out of consideration for their preferred careers. If they're degreed or trained for a specific profession, they often lose accreditation for which they previously trained.

Contribution to Spouse's Career

When one spouse excels, it's sometimes because the other spouse sacrificed their money, their emotional well-being, and their own careers. That sacrifice often comes as financial contributions to a college education or sole responsibility for household duties. Some spouses simply fall into a routine of caring for children alone while the other spouse builds a career. A spouse's financial and emotional support help elevate a family's lifestyle. When these arrangements continue over time, they often leave a spouse unqualified to re-enter the job market.

Standard of Living

The court assesses a spouse's need for support based on their established standard of living. This often becomes an issue during a long term marriage. Spouses work together for years building their net worth. Often the standard improves because one spouse performs all the domestic duties while the other earns the income. It's a mutually beneficial arrangement if spouses stay married. When they separate or dissolve their marriage, one spouse often bears the burden of an unexpected lifestyle change.

Age and Health

Age and health often become dual considerations when a couple has remained married for a long time. As couples age, they often deal with multiple illnesses and medical conditions. Because of age-related physical and immune system issues, older people are less able to recover from an illness. They are more likely to require long-term care.

Contact The Law Offices of Steven M. Bishop

If you're considering a divorce from a long-term spouse, contact Attorney Steven M. Bishop for comprehensive legal assistance and compassionate advice. Attorney Bishop recognizes that no divorce is easy or simple, so he works closely with clients to provide the help they need. To schedule a consultation, call our office at (619) 299-9780 or complete our Contact Form.

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Top 5 Mistakes to Avoid When You’re Planning to Divorce

When you're going through the planning stages of a divorce, it's a tough transition for everyone. Despite the potential for unimaginable stress, you must still make prudent choices. That's often difficult when you're experiencing so many emotional changes. Still, it's important that you strike a balance between living a normal life and avoiding the mistakes that inevitably make your divorce even more stressful. Attorney Steven M. Bishop understands that divorce is hard, even during the planning stages.  As a Certified Specialist in Family Law, he's often seen consequences when a divorcing couple makes mistakes before seeking legal advice. He created this list of the top 5 divorce planning mistakes to encourage you to think carefully before you act.

1. Including Your Children in Your Conflict

As parents, you must try to keep your children out of the middle of what is essentially an adult conflict. That's often difficult when they're the object of so many critical decisions. California Family Statutes include a helpful standard that should guide your actions before, during, and after your divorce. Their goal is to make decisions based on "the best interests of the child." That must be your goal as well. The Psychology Today article, "Understanding the Effects of High-Conflict Divorce on Kids" discusses how profoundly parental conflict can change a child. Studies have shown that bickering parents cause childhood problems from mental health to self-esteem. You and your future ex-partner or ex-spouse must decide together how to meet this challenge. Here are a few solutions to consider.
  • Provide reasonable age-appropriate answers to your children's questions. They deserve simple facts about what's going on. If they can't get answers from you, they will find them elsewhere.
  • Don't argue in front of the children. The above article suggests communicating via email to avoid emotional interactions.
  • Consider accessing the California Court-recommended website, Families Change. It provides resources to help parents, children, and teens deal with divorce.
  • Work together on a parenting plan that's acceptable to both parents.
  • Establish workable traditions for dealing with future conflicts.

2. Insisting on Your Day in Court

Some spouses and partners want their day in court. They want a judge to hear what they've been going through. They want the court to grant them sole custody of the children. They want spousal and child support. They want to air their dirty laundry, no matter the emotional cost. If you're anticipating this volatile, TV-version of the divorce process, you should probably consider non-court alternatives instead. Collaborative Divorce: You and your spouse or partner work with attorneys who help you negotiate an agreement without going to court. You may seek input from specialists to help you make decisions about child support, community property, and other matters. You can sign a document designating that you agree to resolve your differences outside the courtroom. Mediation: Divorcing parties and their attorneys work with a trained mediator to discuss their divorce issues. It's facilitated negotiation where the mediator encourages the parties to communicate and find solutions. The mediator has no authority to make decisions on your behalf.

3. Going Into More Debt

If shopping is your go-to activity for easing stress, you're not alone. While shopping might be the ideal activity to calm you during your divorce process, it's probably not a good idea. Whether you pay with credit or cash, your purchases will affect your divorce-related financial issues one way or another. Before you plan a shopping trip, you must consider your financial future. You will eventually settle into a new home or apartment. You'll have to pay all the bills you and your spouse or partner once managed together. If you don't have custody of your children, the court will order you to pay child support. If you do have custody of your children, you will likely pay extra expenses that aren't included in the support agreement. You'll owe court costs and legal fees. Also, when you spend money, your spouse could accuse you of depleting community assets.

4. Hiding your assets

Divorce often brings out a natural instinct to protect your property and financial resources. Some divorcing spouses do this by attempting to hide them. You might think up an elaborate plan to retain assets your spouse might not know about. That's something you should never consider for two reasons.
  1. Your spouse will likely find out.
  2. If you lie about your assets during a divorce process, it's perjury.
If your soon-to-be-ex suspects that you're hiding assets, she or he can hire a forensic accountant to confirm or disprove their suspicions. Forensic accountants specialize in criminal matters, but they also provide valuable services for divorcing spouses. It's a fee that spouses gladly pay when they believe their future exes are hiding community property assets. If the Family Court learns about your subterfuge, the judge has the option of referring you for criminal prosecution. When you misrepresent your assets during a court process, you're not simply misleading your spouse. You're lying to the court, and that's perjury. While the court might not choose to refer you for criminal charges, it has the discretion to use that option.

5. Forgetting to Change Your Beneficiaries

Some life insurance policies won't pay if the beneficiary doesn't have an insurable interest in the insured person. Not all financial instruments work that way. If your spouse or partner is a named beneficiary on your will, irrevocable trust, or some other financial instrument, you must make the changes immediately. Retirement plans are a little more complicated. You can't remove an existing spouse's name from an ERISA-governed retirement plan. If your plan doesn't become a part of the community estate, you should change the named beneficiary as soon as you can do it legally.

Contact The Law Offices of Steven M. Bishop

As you consider divorce or legal separation, you must know and understand your legal rights and responsibilities. Even if you don't understand the legal ramifications of your actions, the court will still hold you responsible. Contact Attorney Steven M. Bishop to schedule a consultation. As a Certified Specialist in Family Law, he can help you from the early planning stages to the final disposition. To schedule your consultation contact Attorney Bishop at (619) 299-9780 or complete our Contact Form.

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Can I Get Spousal Support While My Divorce is Pending?

Divorce is never pleasant under the best of circumstances. As spouses begin the transition to separate households, one household often undergoes more financial hardships than the other. California's Family Code allows the courts to address this inequity. Division 9, Chapter 4, §3600 gives the court discretion to order one spouse to pay support to the other.  When one spouse proves the need for support, the court can require the other spouse to pay while the dissolution or legal separation is still pending. The court's support order follows the same guidelines as an order issued at a final trial.

A Certified Specialist in Family Law

Contact Attorney Steven M. Bishop if you have concerns about paying or receiving spousal support. As a Certified Specialist in Family Law, Attorney Bishop helps clients understand their legal rights in California. He realizes that financial issues are common for couples and families going through a dissolution or legal separation. They disrupt your peace of mind as you work to build your new life. They continue long after your dissolution or legal separation is final. Attorney Bishop provides compassionate guidance and assistance, and he works hard to resolve his clients' support concerns.

Why Does Family Court Grant Spousal Support?

When a family dissolves a marriage or initiates a legal separation, they often undergo an immediate economic shift. Suddenly, both parties must handle the cost of separate living arrangements. The transition to independence is often financially challenging, but even more so for the spouse with inadequate income. If he or she also has primary custody of the children, it magnifies the income shortfall. Household expenses, food, utilities, and other costs often become unmanageable. Custodial parents also struggle with additional financial challenges, even if they receive consistent child support payments. They often pay recreation expenses, extracurricular fees, and other costs that child support payments don't always cover.  When appropriate, the court issues an order that legally commits the higher-earning spouse to provide spousal support to bridge the financial gap.

When Does the Court Grant Spousal Support?

A Family Court doesn't automatically grant spousal support. Before rendering a decision the court examines a couple's financial situations and many other factors. The primary goal is to allow the supported spouse to maintain the standard of living they had during the marriage. The court assesses the need and determines the spousal support amount by evaluating evidence that provides answers to relevant questions.

Marketable Skills

Does the supported spouse have any marketable skills? What is the market for these skills? Does the spouse need additional training?

Impaired Earning Capacity

Did periods of unemployment "...due to domestic duties..." impair the spouse's current and future ability to earn a living?

Contribution to Spouse's Career

Did the spouse seeking support contribute to the other spouse's education, training, career, etc?

Capacity to Pay Support

Does the supporting spouse have enough income and assets to pay spousal support?

Needs Established During The Marriage

What was the couple's standard of living during the marriage?

Assets and Liabilities

What separate obligations and assets does each spouse have?

Marriage Duration

How long did the marriage last?

Dependent Children

Can a custodial parent seeking spousal support earn a living without "...interfering with the interests of dependent children...?"

Personal Circumstances

How old are both spouses? Does either have any health issues?

Domestic Violence Issues

Was there any history of domestic violence during the marriage? Was a spouse ever convicted of domestic violence?

Tax Consequences

Will spousal support cause "...immediate and specific..." tax issues. Before reaching a decision, the court has the discretion to consider these and any additional factors it deems just and equitable.

Does One Spouse Always Receive Support?

Unlike child support, one spouse is not automatically responsible for paying spousal support to another. As with any issue that goes before a court, the person in need of support must produce evidence that verifies their position. As the above parameters indicate, the court attempts to make reasonable decisions based on the spouse's lifestyle, income, and financial need. The goal is to keep both spouses living as they are accustomed. Also, it's not always a matter of a male spouse supporting a female spouse. California Family Code clearly avoids male and female references. It uses the term, "spouse" instead of husband or wife. It refers to the involved parties as the "supported party" and the "supporting party."  The wording makes it clear that either a man or a woman may be responsible for paying spousal support to the party with limited financial assets.

Is a Spousal Support Order Permanent?

Spousal support is meant to provide transitional assistance as an ex-spouse settles into his or her new life. This is true for temporary support while a divorce is pending as well as the judgment issued when the dissolution or legal separation is final. The laws include a clear expectation that the supported spouse must make an effort to improve their financial situation. It further concludes that a supported spouse must be able to support him or herself within a reasonable period of time. The court defines a reasonable period as one-half the length of the marriage. This timeframe is subject to the court's discretion. The expectations are more flexible when a supported spouse has health issues or a couple is dissolving a longstanding marriage. The court can modify or terminate a spousal support order under certain circumstances.
  • The supporting spouse shows good cause that a support order should be modified or terminated.
  • The order is unenforceable during any period where the divorcing parties have reconciled.
  • The supported party has separate assets or enough income to support themselves.
  • The supported party is living with someone in a non-marital relationship.
  • The court awards custody of the children to the supporting party
During a hearing or trial where the court considers spousal support, it sometimes admonishes the person seeking support that they should make a reasonable effort to support their own needs. Before formalizing a dissolution or legal separation, a court may have a vocation training counselor evaluate the supported spouse's employment skills and abilities.

Contact The Law Offices of Steven M. Bishop

If you need assistance with a spousal support order, Attorney Steven M. Bishop can provide the guidance and legal assistance you need. As a Certified Specialist in Family Law, he always puts your needs first. Attorney Bishop has helped many clients work through complicated dissolutions and legal separations. He wants to determine if he can help you. To schedule a consultation, call our office at (619) 299-9780 or complete our Contact Form.

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