FREQUENTLY ASKED QUESTIONS
HOW IS CHILD CUSTODY RELATED TO CHILD SUPPORT?
Child support payments are based on the cost to the couple of raising their children estimated as a percentage of their total income. If each parent made the same amount of money and the children were living with each parent an equal amount of time, child support would not be needed. In most post-divorce arrangements, the high-earning spouse subsidizes the low-earning spouse so the children remain at the same standard of living. When the low-earning spouse also has the children most of the time, a larger subsidy is necessary. So, the general rule is: the less time you directly supervise your children, the more you may have to pay in child support.
ARE A FATHER’S RIGHTS FOR CUSTODY ANY LESS IF HE WAS NEVER MARRIED TO A CHILD’S MOTHER?
A father’s rights for custody come from him being a father, not a husband. However, an unmarried father must first establish paternity through DNA testing or the agreement with the mother. Once he can show the court that he is, in fact, the father, he can petition for an order that allows him sufficient contact to establish a loving relationship with the child. The court decides the custody issue based on the best interests of the child.
CAN MY FORMER SPOUSE MOVE OUT OF CALIFORNIA WITH OUR CHILDREN?
A parent who has sole custody of his or her children can move the children out of state as long as the move is not detrimental to the children. A parent who shares custody must ask for the court’s permission to move by filing a request for order seeking the right to “move away.”
HOW DOES CALIFORNIA CALCULATE CHILD SUPPORT?
California has a complex formula that takes into consideration many factors, including:
The total income of the parents
The earning potential of non-working parents
The number of children
The “time-sharing” custody agreement
Health insurance and medical expenses
Support obligations to children from other relationships
Mandatory expenses such as retirement accounts and union dues
Other factors the court deems relevant
IF MY WIFE GOES BACK TO WORK AFTER WE DIVORCE, DO MY CHILD SUPPORT PAYMENTS GO DOWN?
Your child support payments are based on your portion of the total parental income. If your wife is not working, you’re probably responsible for 100% of that amount. When your wife’s income increases, your contribution to the total parental income decreases. However, you can’t recalculate a new amount on your own; your child support payment is a court order, which can be modified only by another court order.
WHO PAYS FOR MY CHILD’S MEDICAL COVERAGE?
The law requires every child support order to include medical support. The court orders either or both parents to provide health insurance for the child. This cost is entered into the calculation of child support. Uninsured expenses are apportioned between the parents according to their income.
HOW LONG MUST I CONTINUE TO PAY CHILD SUPPORT?
The cut-off for court-ordered child support is usually 18 years old or when the child graduates from high school. Other life events, such as marriage or registered domestic partnership, military service, emancipation, or death, can trigger an end to support. Parents may opt to support a child longer and parents with means may choose to continue until the child completes college. The court may order parents to continue support for a disabled adult child who is not self-supporting.
DO PENALTIES APPLY FOR DELINQUENT SPOUSAL AND CHILD SUPPORT PAYMENTS?
If you have a balance due on your support payments, the state imposes an annual interest rate of 10%. The court can order your wages to be garnished to pay any arrears. If the court finds that you have the means to pay but have willfully refused, it could find you in contempt.
HOW DOES CALIFORNIA DIVORCE LAW TREAT AN INHERITANCE?
Even though California is a community property state, treating virtually all assets acquired during the marriage as marital property, the law makes exceptions for items that are clearly meant to be personal. So, if your relative dies without a will and money passes to you via the state’s laws governing inheritance, it’s clearly yours. If your relative leaves you something in a will and mentions your spouse in the bequest, that’s probably community property. Of course, what you do with the inheritance is also important, because you could turn it into community property by commingling it with shared assets or giving your spouse use of or control over it.
TWO DAYS BEFORE OUR WEDDING, MY HUSBAND SURPRISED ME WITH A PRENUPTIAL AGREEMENT. I SIGNED IT BECAUSE THE WEDDING WAS HANGING IN THE BALANCE. TEN YEARS LATER, WE’RE DIVORCING. IS THE PRENUPTIAL AGREEMENT VALID?
This sounds like duress, which can invalidate a contract. To be valid, a contract must have been signed voluntarily. When a signee faces extreme negative consequences, like having to call off a wedding at the last minute, the signee is actually being compelled to sign against his or her will. California law specifically calls for a 7-day period to review the document and consult an attorney, otherwise the agreement is presumptively invalid.
AFTER WE WERE MARRIED, MY WIFE AND I MOVED INTO MY HOUSE. HER NAME HAS NEVER BEEN ON THE MORTGAGE, BUT PART OF HER INCOME PAID DOWN THE LOAN. WE’RE DIVORCING, AND SHE WANTS THE HOUSE AND SOLE CUSTODY OF THE CHILDREN. ISN’T THE HOUSE RIGHTFULLY MINE?
This question raises many issues of California divorce law involving community property and child custody. On the one hand, the house seems to have been kept separate by keeping your spouse off the mortgage. On the other hand, funds were commingled to pay the mortgage, which would indicate co-ownership. If you also allowed your spouse to alter it, redecorate, or remodel, that would further indicate an intention to share ownership. Your custody battle could also influence who gets the house because the court favors stability for young children and, in some rare cases, the court may want the house to go to the parent who has primary custody. Of course, you may be overlooking other factors that could determine the outcome of your case.
HOW DOES A LIVING TRUST PROTECT ME DURING MY LIFETIME?
When you form a living trust, you name a trustee to manage your effects in case you become incapacitated. So, if you need emergency care, the person you’ve chosen makes the medical decisions. If you don’t have the energy or capacity to manage your finances, someone you trust can pay your bills, manage your investments, and maintain your property.
HOW BIG DOES AN ESTATE HAVE TO BE BEFORE IT NEEDS AN ESTATE PLAN?
You don’t need a lot of property to need an estate plan. Estate planning is more than just succession; it’s also about protection for you as you age. A comprehensive estate plan includes a power of attorney, so someone you trust can make decisions regarding your medical treatment and finances should you become incapacitated. In addition, you can establish a funeral trust to ensure a dignified burial.
I’M ABOUT TO REMARRY AND MY SPOUSE-TO-BE HAS CHILDREN FROM ANOTHER MARRIAGE. HOW DO I MAKE SURE MY CHILDREN INHERIT FROM ME?
Thinking about this before you get married is essential because the most important consideration is establishing assets intended for your children as separate rather than marital property. Under California community property law, all of a decedent’s community property goes to the spouse. Only separate property can go directly to the decedent’s children, though a portion of that also goes to the spouse. You should start with a premarital agreement that draws the line between the two types of property:
Separate property. You can dispense separate property as you see fit through a will.
Community property. If you pass away, the community property would pass to your spouse and eventually to your spouse’s children, leaving your children with nothing.
Many of our clients with blended families set up a Qualified Terminable Interest Property trust (QTIP) which, after they pass away, holds their property in trust for the use of their spouses and then transfers the property to their own heirs after the spouse passes away.
MY SPOUSE AND I HAVE A WIDE DISPARITY IN OUR INCOMES. SHOULD WE HAVE SEPARATE ESTATE PLANS?
Whether you have separate estate plans depends on how you’re treating your income now (as community property according to California law or separately under a premarital agreement) and your future plans for your wealth. Future planning becomes a big issue with children from prior marriages or when one spouse is significantly younger than the other. Under these circumstances, the spouses have diverging interests on how to dispose of their wealth. Therefore, even if spouses eventually agree on a single estate plan, they should reach that agreement by negotiating with separate attorneys.