Child and Spousal Support
Both parents are mutually responsible for the support and maintenance of their children. In the eyes of the law, parents are equally responsible for the support of the children, regardless of which parent has more custodial time. However, the law presumes that the parent who has the greater share of the custodial time already contributes a significant portion of his or her income towards the support of the child. Therefore, the California child support statutes functions to alter the child support amount in rough proportion to the parent’s share of physical responsibility for the child.
Parents can make an agreement between themselves as to their child support obligations. However, because parents cannot waive or limit the child’s right to support by their own agreement, the Court is not bound by an agreement between the parents and can modify a child support order at any time. Moreover, one parent’s interference with the other parent’s right to visitation does not change the obligation to support the child on the theory child support and visitation are independent rights and that the child’s right to support should not be compromised by the parents’ misconduct.
There are two different kinds of spousal support, and our San Francisco family law office can help you obtain both. The first is support that a spouse is entitled to during the pendency of the family law proceedings, or called pendente lite or temporary spousal support. The other kind is called permanent spousal support. Permanent in this context does not mean that it lasts forever. It means that it is ordered concurrently with a Judgment, usually of dissolution of marriage or domestic partnership.
With respect to temporary spousal support, it is generally calculated according to a formula taking into account the incomes of the parties. If the parties have children, child support will be taken into account when calculating for spousal support. This is a calculation that takes into account income from all sources, whether it be community or separate. We can help you get an order for support, and we can strategize ways to limit or avoid one altogether. One important way we can help you avoid an order for spousal support is entering into a premarital agreement before marriage.
The duration of the marriage is of primary importance when the court determines a spouse’s entitlement to spousal support. Generally speaking, for marriages under ten years in length, a spouse is entitled to support for half of the length of the marriage. So, let’s suppose that you were married and not separated for one year, separated for four years, and then your spouse files for divorce, requesting spousal support. The court is likely not going to order that you pay spousal support because the entitlement to support only lasted for six months after the separation period began. For marriages over ten years in length, however, the court is not entitled to terminate a party’s right to spousal support when the court divorces you.
Permanent spousal support, or post-Judgment spousal support, the court has to take into consideration a number of different factors besides for need and ability to pay. One important factor that our lawyers look at closely is the marital standard of living, or the lifestyle of the parties during the marriage, including whatever the parties set aside for savings and investments. The marital standard of living sets a cap on support. So, when the court orders a spousal support payment, the order cannot exceed the marital standard of living. Let’s suppose that, after marriage, one party starts a company is acquired and goes public, and that spouse earns a windfall. If the other spouse goes back to court to modify support based on their former spouse’s new income, the court cannot modify support so that it exceeds the parties’ marital standard of living. Instead, the court will use the marital standard of living as a cap on support.
The purpose of spousal support is to get both parties on their feet so that they are self-supporting. The court will require a spouse who has been out of the workforce as a result of their domestic responsibilities to make significant efforts towards becoming self-supporting. If a party refuses to make efforts to become self-supporting, the court can seek to impute income to that spouse, as if that spouse was working. With some major caveats dealing with a party’s age and health, the public policy of the state is to give a spouse time to retrain and get back on their feet, but ultimately the goal is for that spouse to become self-supporting.
Our San Francisco family law office regularly handles the issue of spousal support, both during mediation and litigation proceedings. We can help you obtain an order for spousal support or defend against them.