Do I have to pay spousal support even if I am married to someone who refuses to work?
Most clients asking the question above currently pay spousal support and want to see their ex-spouse become self-supporting. Spousal support is within the court’s discretion. This means the court will look at all facts of a particular case and make a decision answering the question above.
The California Family Code requires the court to consider a variety of factors when ordering spousal support. One such factor is “[t]he goal that the supported party shall be self-supporting within a reasonable period of time.” While a “reasonable period of time” is defined in the code, the court has discretion to increase or decrease the amount of time for support depending on the other spousal support factors it must consider. There is no straight forward answer, but this does limit the amount of time support is to be paid. Assistance from an attorney with knowledge in this area of law is essential for presenting your case to the court. You should speak with an experienced family law attorney.
Note: There is a major exception to the “reasonable period of time” factor. When the length of a marriage is 10 years or more, a Judge may not set an end date for spousal support. In that instance a client may be able to change or end spousal support if there is a “change of circumstances.” See below.
How am I supposed to live off what remains after the judge has ordered me to pay spousal support? Is there anything that can be done to change this?
The court will not blindly award spousal support in an amount that will prevent you from being able to live your life. In fact, the court’s goal is to award support in an amount allowing both parties to maintain a standard of living as close to that of the marriage. The court will consider a variety of factors to determine if the support amount and length of time for payment is just and reasonable under the specific circumstances.
If you are required to pay spousal support but no longer believe you can afford to or need to pay support because of a change of circumstances since the court ordered the support, you may be able ask the court for a modification. These changes of circumstances may include, but are not limited to, a significant drop in income, your ex-spouse not making a good faith effort to become self-supporting, your ex-spouse remarries, or your ex-spouse gains a significant increase in income. Assistance from an attorney with knowledge in this area of law is essential for presenting your case to the court. You should speak with an experienced family law attorney.
Note: You are still required to make the original court-ordered spousal support payments until the court orders a modification. If you stop making payments before a court-ordered modification, you can be required to make back payments.
Why do I have to let my spouse know about every account I have? Or every new item I purchase?
In California, you and your spouse have a fiduciary relationship. In other words, each spouse has a duty of the highest good faith and fair dealing to the other, and neither spouse shall take any unfair advantage of the other.
To meet your fiduciary obligation, you are required to provide your spouse access to all information reflecting transactions you’ve made during marriage. This duty includes, among other obligations, making a full disclosure to your spouse of all material facts and information regarding the existence, characterization, and valuation of all assets in which the community may have an interest. If either spouse claims a breach of the fiduciary duty, the court can order an accounting of all property and classify any item as community or separate property. If you are unsure about what is required in order to fulfill your fiduciary duties, you should speak with an experienced family law attorney.
Note: Neither spouse is required to keep detailed notes, books, or records of community property transactions. For instance, you must be able to share that you spent a certain sum of money on “groceries,” not that you purchased six bananas, cereal, bread, etc.
What are the repercussions of moving in with another person before my divorce is final? If I am not asking for spousal/child support, does my spouse have any say in what I can and cannot do? Can my spouse do anything about it?
You are not barred, and your spouse cannot stop you, from moving in with another person before your divorce is finalized. However, moving in with another person may have an effect on the spousal support you receive. It also could potentially impact child custody or visitation orders.
The court can consider your living situation when ordering or modifying spousal support payments. If you are receiving, or will receive, support, the court will consider the additional support you receive from the person you are living with. On the other hand, if you are paying, or will pay, support, the court will not consider the income of the person you are living with when ordering you to pay.
If you and your spouse have children and do not agree on custody and visitation issues, then who you move in with will be a factor in the court’s decision regarding the “best interest” of the children. This is another area where the court has broad discretion because “best interest” can be presented in many different ways. Child custody often involves very difficult and complex situations. You should speak with an experienced family law attorney who will work with you to present your position to the court.
Do I have to give my spouse the dogs, cats, or other animals?
Family animals are a tricky subject if the parties do not agree who gets to keep them. Essentially, animals are personal property, and therefore community property if acquired during marriage. Like all other issues, the specific circumstances involved are critical. Your attorney will need to help you prove that the animals should reasonably be ordered to stay with you. Factors may include: Who primarily feeds, grooms, walks, or otherwise cares for the animal? Is one spouse more likely to be available to care for the pet because of differences in employment obligations or other concerns? If you and your spouse don’t agree on this issue, you should speak with an experienced family law attorney who will work with you to present your position to the court.
If I was married in San Diego and now moved out of the state, how can I go about getting a divorce?
Generally, you have to file for divorce in the State and County you are presently living in, irrespective of where you were married. Make sure to check your local laws regarding residency requirements that must be met before filing for divorce. You should speak with an experienced family law attorney practicing in the County where you reside.
What steps do I need to take to have my child move with me to a different state?
If you have current orders for child custody, they will most likely contain restrictions on moving with your child. Generally, you will need either the written agreement of the other parent or orders of the Court before you move out of the State, or even out of the County. If you do not have an agreement with the other party, you will need a “move-away” order from the Court. “Move-away” requests are very complex situations. You should speak with an experienced family law attorney for assistance in this type of matter.
What rights do I have as a single parent that has never received money from the other parent who now wants to be involved in the child’s life?
Continuity and stability are very important considerations when it comes to child custody. If the other parent wishes to be more involved in your child’s life, they will have to file a motion with the family court. Every child in California has a right to be supported financially by both parents. However, if you were never married to the other parent, you will first have to establish paternity, if not already done by the other parent who wishes to be more involved in the child’s life).
Once paternity is established under California law, parents assume the full rights and responsibilities involving their children. You will then have to file a motion for child support, because if the other parent has never contributed financial support, there is no way to force the other parent to pay child support without a court order. Paternity, child custody and child support orders are very complex. You should speak with an experienced family law attorney for assistance in these matters.
What rights do we have as grandparents if our child died and the surviving parent won’t let us see our grandchild?
In California, under Family Code section 3100, the family court may grant reasonable visitation rights to the grandparent of a minor child. The court may grant you reasonable grandparent visitation rights if either parent of a minor child is deceased. In order to obtain grandparent visitation rights, you must first file a petition requesting grandparent visitation rights with the court. An experienced family law attorney can help you with the petition.
Do I need a prenuptial (premarital) agreement?
Of course, a prenuptial agreement is not required before you get married, but it often is a smart thing to do, especially if one or both prospective spouses has substantial assets and/or income, children from a prior marriage or relationship, or potential inheritances. The agreement is a written contract entered into before the marriage that typically contains terms regarding possession and control of property, treatment of future earnings, and division of assets in the event of divorce, separation, or death.
Without a prenuptial agreement, your marriage will be governed by a very complex set of laws governing community property and separate property. The choice is between a set of rules negotiated by you and your fiancé, or those imposed by the State of California, over which you will have no control. Keep in mind that prenuptial agreements can be drafted to protect both spouses, not just a wealthy spouse. If you are thinking about getting engaged or already have a wedding date planned, speak to an experienced family law attorney on whether a prenuptial agreement is advisable for your specific situation.