Child support serves an important role in providing your child the necessary financial resources to sustain their well being—but calculating the accurate amount of support that is necessary isn’t infallible. Changing circumstances, income fluctuations, and the child’s needs all factor into how support should be computed. Being aware of common child support mistakes is an important step toward ensuring your payments are accurate and fair.
Not Acknowledging Changes in Income
Especially during tough economic times it is important to know that changes in your income can affect your support obligation. It is a common mistake for men who have lost their job or fallen prey to a pay cut, to not ask for a reduction in their child support payment. For a reduction to be implemented, a motion with the court must be filed that requests a decrease based on the substantial change of circumstances. Even if you have already made a deal with the other parent, it is crucial that there is a court order explicitly modifying your support obligation. If you don’t have a court order changing the amount you owe every month, you are still obligated to pay the full amount. Not paying the full amount means you are in contempt and racking up debt (plus interest) for the amount not paid. These situations can snowball out of control very quickly.
Not Keeping Proof of Payment
Another common child support mistake is not keeping proof of payment. Regardless of how amicable your relationship with your child’s mother is you should have proof of every dollar that you have paid to support your child. Your court order should outline how payments are to be made. Payments not made through the approved channels could be construed as a gift and not applied toward your support obligation.
Overlooking Written Orders
Navigating a California child custody case can be challenging and in many circumstances the devil is in the detail. Written orders explicitly define the specifics of all aspects of your custody agreement. Responsibilities regarding support payments, tax breaks, medical insurance, and more will all be assigned to both parents. It is critical that you and your attorney proactively advocate for fair and equitable terms.
Assuming it is a Formula
The abundance of child support calculators available online can lead to the common (and grievous) misconception that calculating child support is a simple formula. There are a lot of factors that can influence your payment obligation and there are a lot of opportunities for errors in making calculations. An experienced family law attorney can guide you through the process and potentially save you from overpaying thousands of dollars a year.
Signing the divorce decree can feel like you have reached the finish line. The negotiating and bargaining is complete, assets and debts have been divided, and the logistics of the separation have been worked out. Finalizing the divorce provides closure, but for divorcing parents it is also the official matriculation into new territory of co-parenting.
Co-parenting doesn’t begin once the divorce is final; it is a process that commences long before the decision to divorce is made. How parents manage the parenting process through the divorce will often lay the foundation for the parenting plan, which in turn is the framework for co-parenting after the divorce is final.
When the divorce becomes final, it isn’t uncommon for new challenges to arise and for parents to experience a rollercoaster of emotions. One of the most common issues parents struggle with is the challenge of unequal parenting time. The parent with less time can be left feeling isolated from the children. The parent with primary physical custody can be overwhelmed with trying to do it all.
In scenarios like this, it is important to remind the kids that even if both parents don’t have equal time, they are equally important. Reassure the child that both parents love them, and that even though they might not see them as much, they will be a stable presence in their lives. Additionally, it is paramount that both parents focus on being consistent and predictable for the kids. Keeping a regular schedule, and reminding the children about changes early, can go a long way in reassuring the permanence of both parents in their lives.
One of the other big challenges of co-parenting after divorce is the inconsistency of rules between households. Mom may have a completely different set of rules than dad, and reconciling how to handle differences can be problematic. It is important to be judicious in choosing your battles on this topic. When disagreements do arise it is important to deal directly with your ex and not ask your children to convey messages to the other parent.
Additionally it is important to do your best to maintain a positive attitude about your children spending time with the other parent. Regardless of how frustrated you might be with your ex, it is important you respect that your child loves them and wants to spend time with them.
Navigating the terrain of co-parenting after divorce is no easy task. If you are struggling with finding a balance in co-parenting or are feeling overwhelmed, it is advisable to work with a family counselor. A counselor can help you develop coping skills and tactics for managing your relationship with your ex productively— and make sure your kids’ best interests are served.
It is important to note that the above suggestions do not pertain to situations where domestic violence or child welfare is an issue. A Child’s safety should always come first. If your ex poses a threat to you or your children’s safety, contact the appropriate authorities immediately and speak with a family law attorney to ensure you protect your children and your rights.
What is the difference between physical custody and legal custody?
It isn’t uncommon to hear people use physical custody and legal custody interchangeably. Unfortunately, this is incorrect. These two terms are not transposable; rather they describe two different aspects of child custody.
The term “child custody” is the overarching term that covers everything related to the welfare and upbringing of a child, including parental rights and obligations. Child custody issues arise most commonly in situations where parents are getting divorced or the parents are unmarried.
The Superior Court of California defines legal custody as:
Legal Custody determines which parent will make decisions about the child’s or children’s health, safety, education, and welfare.
Sole legal custody means that one parent has the right and responsibility to make decisions regarding the children’s school, doctors and general welfare.
Joint legal custody means that both parents share the decision-making rights and responsibilities. They cooperate on decision-making.
Legal custody is the right and responsibility to decide how a child will be raised. Parents with legal custody are empowered to make a wide breadth of decisions including: what schools the children will attend, how they will spend their free time, what extra curricular activities they will participate in, and what religion they will practice.
Joint legal custody can quickly become contentious when parents aren’t able to agree on decision-making. In situations where both parents continually struggle to reach agreement on key decisions, it is possible for a judge to designate one parent to make the final decision.
Sole legal custody designates only one person with the legal authority to make major decision on behalf of the child. This eliminates conflict that can arise during disagreements over decision-making and can reduce tension. Sole legal custody is necessary in situations where one parent is absent and unavailable to contribute to making decisions regarding a child’s upbringing.
Where and when the children live falls under the umbrella of physical custody. The implications of how physical custody is awarded should not be minimized. Where the child lives and what the daily routine is, will set the standard for any future decisions made by the court. Like legal custody, physical custody can be sole or jointly shared. In situations where joint physical custody is awarded, it doesn’t guarantee that both parties will get exactly the same amount of time. In many cases one parent will have more time than another, but the children will spend time living with both parents. In situations where one parent has the children more than fifty percent of the time, they may be called the “primary custodial parent”.
Family law, and child custody in particular, can be complex and confusing. If you have questions about legal custody, physical custody, or any other family law issue, please give us a call. We are always happy to answer your questions over the phone at no charge. (619) 243-0888
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Navigating stepfamilies can be challenging for everyone involved. Whether they are your children from a previous relationship, or they are your significant other’s, blending into a cohesive unit is no easy task. While the road to successful step parenting can be difficult, the reward of forging strong and lasting relationships is well worth the work.
Stepparent/stepchild relationships should share the same common elements as all successful and positive relationships. Trust, communication, and respect should be cornerstones—and understanding the limits of all parties involved can go a long way in cultivating a healthy and positive bond.
In understanding the limits of everyone involved, it is important to manage expectations. Unrealistic expectations will quickly undermine the stepparent-stepchild relationship. It is common for stepparents to want to create a “perfect family” —a sort of utopian Brady Bunch scenario where conflict is minor and resolution never takes more than thirty minutes. In reality, things rarely go as planned and conflict can take a lot of time and effort to resolve. One strategy for keeping expectations from getting out of control is to stay focused on building and maintaining respect.
It is inevitable that everyone involved will make mistakes as you try and navigate new territory. It is important to remain supportive even when missteps occur. Encouraging non-judgmental dialog and openness will solidify your commitment to building strong and lasting relationship between family members.
Strong healthy relationships take time. Be patient and persistent with yourself and your family members. It won’t happen overnight, or even over a matter of months. Everyone involved has their own baggage and establishing meaningful relationships can often take years.
Stepfamilies, and the interpersonal dynamics involved, can be complicated and seeking the guidance of a licensed therapist or family counselor can be beneficial. A skilled counselor will provide the framework and tools for the entire family. Additionally they can give you specific advice in situations where you are uncertain how to proceed.
Blended families and the relationships that come with them are multifaceted and sometimes challenging. While it isn’t easy, the work is certainly worthwhile.
What is an uncontested divorce?
An uncontested divorce is the dissolution of a marriage where both parties agree to all the terms of the divorce. An uncontested divorce is a bit of an all-or-nothing situation. You will only be able to proceed if both people agree to how property, assets, retirement, debt, etc. are to be divided. If there is even one tiny detail that is disputed, you will be facing a contested divorce and will need to have the court resolve the issue.
A contested divorce is the result of spouses disputing some aspect of their divorce. Common topics of dispute are: parenting plans, division of assets or debts, and spousal support. Because contested divorces are much more complex, require greater involvement by the court and necessitate more steps to finalize the divorce, they can become expensive.
Contested divorces may have a greater upfront cost, but the long-term consequences of inaction can have long lasting repercussions. For example, not negotiating for equal parenting time can significantly impair your ability to be an involved parent. Additionally, forgoing negotiations over the division of assets and debts can leave you with a less than equitable portion.
What is the benefit of an uncontested divorce?
The most apparent benefit of uncontested divorce is the cost savings. When both parties agree to all the terms of the divorce, the amount of paperwork and attorney’s fees are appreciably reduced. Additionally, when both parties have approved all the terms of the divorce, the process takes significantly less time.
Should I hire an attorney if my California divorce is uncontested?
Even if you and your soon to be ex agree on all the terms of your divorce, it is wise to have an attorney review the paperwork before it is filed with the court. Each party should have independent counsel look over the paperwork to ensure all the details are covered and the agreement is equitable.
If you think an uncontested divorce is right for you, consulting with a lawyer before beginning the process can be invaluable. An experienced family law attorney will be able to assess you situation, outline what to expect, and provide insight to some of the details and nuances that might otherwise be over looked.
If you have questions about uncontested divorce in California, or any other family law issue, we are here to help. Our managing attorney, Zephyr Hill, is happy to answer your questions over the phone at no charge. (619) 243-0888
Divorce is a stressful time and having a solid understanding of what to expect can save you money and your sanity. The Internet is a valuable resource when it comes to researching your divorce options—unfortunately there can be a plethora of inaccurate and misleading information posted online. These are three of the most common divorce myths that we have come across.
1. Common Law Marriage
There is an often-cited rule that after seven years of dating, your relationship automatically defaults to a common law marriage. This is false. The State of California does not recognize common law marriages. There are only a handful of states that recognize common law marriages, and those that do have very specific requirements for a relationship to be considered a common law marriage.
That being said, California does recognize meretricious relationships. If you have been cohabiting with your significant other for a significant amount of time, have been pooling resources to pay for joint projects, and the intention of the relationship is/was a romantic partnership you may still be required to equitably divide property. If you have children, the issues of custody and support will need to be addressed.
2. My Spouse Has to Agree to the Divorce
It is not uncommon for men to come into our office frustrated and perplexed because their wife won’t agree to a divorce. We also see men who have been served divorce papers, but want to just ignore the situation in hopes it will go away.
In California, your spouse does not have to agree to the divorce. While having an agreeable spouse will speed up the process and potentially reduce the cost, it is not required.
Once the divorce paperwork is filed your spouse (or you if your wife filed) will have specified time frame to respond. If the respondent (the person who didn’t file) fails to reply or acknowledge the petition, the petitioner can request a motion for a default judgment. A default judgment will usually grant the petitioner a divorce under the terms requested because the spouse did not object.
If the spouse does respond, but refuses to the terms of the divorce, the case will go to trial. During the trial the court will decide the terms of the divorce
3. Quick Divorce
Unfortunately divorce can’t be delivered by FedEx. There is no next day delivery. In California there is a six-month waiting period for a divorce to be finalized. The six-month timeline is a best-case scenario and many divorces can take much longer.
There are numerous factors that can slow down the divorce process. Things like division of property, assets and debts, custody and other contentious issues can put the brakes on finalizing the divorce. As a general rule of thumb, the more conflict there is in the divorce, the longer the process will take.
These are just a few of the most common divorce myths. If you have questions about child support, custody, divorce, or any other family law matter, please give us a call. Having accurate information is imperative when facing these types of situations and we are here to help. (619) 243-0888
California is a community property state and understanding how that will affect the division of debts and assets in your divorce is important. Many people interpret community property to mean there is an automatic 50/50 split of stuff, no matter what.
There are two ways that assets and debts are divided in the US. Forty-one states use equitable distribution and the remaining nine states use community property. Community property states view all marital assets as joint property regardless of title. This means that if while you are married you purchase a house (or car, or boat, etc.) and only your name is on the title, your spouse can claim 50 percent of that asset.
If the same scenario occurred in an equitable distribution state, your spouse would still be entitled to part of that asset. The difference would be how the asset is divided. Equitable distribution gives judges more discretion in allocating assets (and debts) based on the financial circumstances of both parties.
It is true that if an item is acquired during the marriage, both parties own the item equally. That doesn’t mean that each party will be awarded exactly half of every asset. In some instances it makes sense for one spouse to take an unequal division of assets in exchange for a lower support payment. This type of arrangement can be more financially advantageous in the long run.
For assets to be excluded as marital property, the item must be purchased solely in one spouse's name and maintained using money that is separate from marital funds. To illustrate this, imagine you would like to purchase a Triumph motorcycle and you would like it to be excluded from being considered community property. The motorcycle would need to be titled to only one spouse and the money used to purchase the bike would have to come from a separate account that is never used to pay for marital expenses. Furthermore all maintenance and insurance of the bike would have to be paid for from that separate account. If any marital funds are used for the bike, it could become community property.
Regardless if you live in a community property state or an equitable distribution state, the division of property and debts should be carefully considered. Thoughtful planning and an effective strategy can prove very effective in protecting your interests through the divorce process.
If you have questions about how your assets, property, or debts will be divided when you divorce, speak to an experienced family law attorney.
“How much does a divorce cost?” is the most common question we hear. Often people are frustrated when we answer, “That depends”. Unfortunately, divorce can be a complex issue with a plethora of factors that will drastically affect the cost—making it difficult to estimate the final expense.
If you have Googled “cost of divorce”, you have no doubt come across a multitude of offers like “Online Divorce $159” or “Low cost, fast divorce $150”. These ads can set the stage for sticker shock during your first meeting with an attorney.
The average cost of a divorce in the United States is frequently cited somewhere between $10,000 and $20,000. This ballpark range is strictly an estimate; significant assets, children and how contested the divorce is will all add to the expense. In complex divorces that are highly contentious, it is possible for the cost of divorce to exceed $100,000.
While those numbers can be intimidating, you do have some control over how much a divorce will cost. The more issues that you are able to reach an agreement with your spouse, the less expensive the divorce will be. Negotiating an agreement often requires the suspension of emotions and relying on a logical approach for dividing assets, debts and parenting time.
All too often, we see parties blinded by emotions spend thousands of dollars to “win” a piece of property that could have been replaced for a couple of hundred bucks. An example of this would be a couple spending thousands of dollars in attorneys’ fees and court costs to be awarded a television that would cost $400 to buy new.
There are some costs that are incurred in almost every divorce and others that are required only under special circumstances. Here is a breakdown of some items common to divorce proceedings and a general estimate of the cost. The following is a rough estimate; your unique circumstances will dictate the final expense of your divorce. For a detailed assessment based on the facts of your situation, speak to your family law attorney.
All cases will incur an initial filing fee. In San Diego this costs $435 and additional motions will run close to $60.
The cost of a complex divorce will be impacted by the necessity of experts. Many cases don’t require experts, but for those that do, it can be an expensive proposition. Here is a list of the common experts required in a divorce and an estimate of the cost for their services.
- Vocational Evaluation $1,500
- Custodial Evaluation $2,500 to $7,000
- Minor’s Counsel $2,000 to $5,000
- Forensic Accountant $5,000
- Special Master $2,500 to $5,000
- Home appraiser $350
- Personal Property Appraiser for collectibles, art, etc. $100+ per hour
- Computer expert for data recovery and discovery $75+ per hour
- Court Reporters and transcripts $0 to $2,500
- Process server $75 to $400
- Private investigator $300 to $3,500
- Mediator $150+ per hour
- Financial Planner or accountant $60+ per hour
Divorce isn’t cheap and the consequences of trying to save a little money now can sometime cost you more down the road. With many divorces you only get one shot to create an agreement that you will have to live with for many years. Issues like spousal support can rarely be modified; and child support and custody arrangements are challenging to modify once the parenting plan has be finalized.
The best way to reduce the cost of your divorce is to educate yourself on your rights and understand what to expect from the divorce process. The first step in educating yourself is to meet with an attorney. An experienced family law attorney can be an invaluable asset for helping you navigate the challenges of divorce and will be able to provide specific answer that address your unique circumstances.
If you have questions about the cost of divorce, custody or any other family law issue, please give us a call. (619) 243-0888
There is a pervasive misconception that a legal separation is the first step in getting divorced. While legal separation can be part of the divorce process, it is not a requirement for dissolving a marriage.
A legal separation is a formal and legally binding agreement that divides debt, assets, and property between spouses;It will also address the issues of support and custody. Creating a separation agreement is similar to getting divorced, with the main difference being after a legal separation is finalized, you are still married.
Legal separations are often used by men wanting to protect their interests during a trial separation. Additionally, men who don’t want to divorce due to personal or religious beliefs, or wish to allow their spouse to retain medical benefits, will choose legal separation instead of divorce.
Legal separations are beholden to the same rules of law and procedures as a divorce and can set a precedent that will carry over if a divorce is pursued. The courts will usually assume that you were satisfied with the terms of the separation and therefore will apply the same arrangement to your divorce. Because a legal separation will lay the foundation for a future divorce, it is imperative to protect your rights from the beginning.
There are several types of separations and these variations have contributed to some of the confusion surrounding legal separation. The most common types of separations include:
Many couples in troubled relationships will take a time out from the relationship to determine if ending the relationship is the best course of action. Trial separations can provide space to evaluate the consequences and benefits of a divorce. They do not require the involvement of the courts, but it is important to keep in mind that moving out or providing financial support during a trial separation can establish a precedent of support that the courts will consider if a divorce is pursued.
As the name implies, the couple ceases living together. Some couples will continue to work on their relationship after moving out and others will combine a trial separation with living apart. If you are considering moving out, it is in your best interest to consult with an attorney before you move. An experienced attorney will educate you on your options and how to protect your rights while transitioning out of cohabitation.
A permanent separation is an end to a relationship and indicates that there is no chance for reconciliation. If you pursue a permanent separation it is advised that you file the paperwork to make the end of the relationship official. If you don’t file for legal separation or divorce, you can still be held liable for debt your spouse incurs and she may be entitled to assets you acquire. Failing to file official documentation can create expensive complications down the road.
This is the most formal type of separation —it creates a legal agreement that is enforceable and recognized by the courts. A legal separation will provide the most protection if the relationship is unsalvageable and a divorce is pursued.
Legal separation is an excellent alternative to divorce for people that want to end their relationship, but remain married for a variety of reasons. If you are considering legal separation, speak with an family law attorney.
The California legislature is blazing a trail in custody. On October 4, 2013 State Senate Bill No. 274 was signed into law and established provisions for recognizing more than 2 parents. Until the passing of Bill 274, parentage was established using guidelines from the Uniform Parentage Act. Those guidelines limited the legal status of parent to two individuals.
The Uniform Parentage Act was first implemented in 1973 to guide the determination of parentage—particularly paternity. In 2002 an updated version of the Uniform Parentage Act was promoted to address technological changes like DNA testing and in vitro fertilization. While the guidelines have evolved to address the increasing complexity of defining parentage, until now it has been restricted to two parents.
The new legislation states:
“This bill would authorize a court to find that more than 2 persons with a claim to parentage, as specified, are parents if the court finds that recognizing only 2 parents would be detrimental to the child. The bill would direct the court, in making this determination, to consider all relevant factors, including, but not limited to, the harm of removing the child from a stable placement with a parent who has fulfilled the child’s physical needs and the child’s psychological needs for care and affection, and who has assumed that role for a substantial period of time."
This means that in rare circumstances the courts may recognize more than 2 people as the child’s parents. The courts will still use the Uniform Parentage Act as a guide for establishing parentage, but will not be limited to applying the state’s strict guidelines to only two individuals.
History of the bill
The motivation for passing the bill stems in part from a 2011 case that involved a lesbian couple. According to the LA Times, “One of the women was impregnated by a man before the couple resumed their relationship. When a fight broke out, one of the women was hospitalized and the other put in jail, but the daughter was sent to foster care because her biological father did not have parental rights.”
Bill 274 will become state law on January 1, 2014 and will make California the 5th state to provided provisions for recognizing more than two parents. The other 4 states recognizing these circumstances are Delaware, Louisiana, Maine, Pennsylvania, and the District of Columbia.
Bill 274 seeks to protect the best interest of the child, but it isn’t without potential pitfalls. Custody issues can be some of the most contentious cases in the area of Family Law. Adding more people to the mix is a recipe for further complications. Additionally, how visitation, physical custody, and support payments are calculated in cases with three or more parents has yet to be determined by the state. The lack of guidelines leaves an ambiguous grey area that could lead to intense litigation and greater conflict over what is in the best interest of the child.
The California Legislature should be commended for acknowledging the evolution of the anatomy of the American family. Bill 274 will provide alternatives for acting in the best interest of the child and should prevent children from winding up in foster care when a suitable parent is available.
It will be interesting to see the impact of the new bill when it goes into effect on January 1, 2014.