Santa Rosa Family Lawyer Blog

Along with spousal support, child support is a contentious and anxiety-provoking issue in almost any divorce. If you are the parent who pays it, you might worry that you can't afford it. If you are the parent with custody of the child, you might worry that you can't afford not to receive it. Because child support goes toward the stability and well being of the child, it is important that you know all of the facts before proceeding with your divorce.

How is It Determined Who Pays Child Support?

Child support is paid by whichever spouse is the non-custodial parent of the child. Unlike spousal support, which is discretionary, child support is mandatory and determined by a state-provided formula. A California child support calculator is used to calculate what the non-custodial parent owes. It considers the number of children you have, how much time you spend with each one, your monthly income, the amount you pay in taxes, whether you owe child support from previous relationships, retirement benefits, and other factors before determining a payment. A family court judge makes the final determination, so it is possible that the actual amount you would pay would be different from the one calculated.

Do I Still Need to Pay if I Have Joint Custody of the Child?

Many people believe that if you have 50-50 physical and legal custody of your children, you don't owe child support. In fact, even parents with equal custody may have to pay child support if his or her income is much higher than the other spouse's, even taking other factors like taxes into account. This has generated a lot of anger between ex-spouses, with accusations that the non-paying spouse uses child support money for frivolous purposes. Yet the purpose of paying child support is to ensure that the children have the same standard of living that they enjoyed before the divorce. If the children spend half of their time with a parent whose lifestyle is much poorer, the children will suffer. The parent who pays child support pays less when there is 50-50 custody than if the non-paying parent had primary custody.

What if My Custody Payments Don't Go Toward the Child's Care?

As mentioned above, the paying spouse's biggest fear is usually that the money paid isn't being used to support the children. If that is the case, you should not stop payment. Instead, petition the court to modify child support payments and, if necessary, custody arrangements. It is common for spouses to modify child support payments once their children have outgrown certain care arrangements, such as day care. Ask a California family law attorney for more information about what to do in this type of situation.

What if I Can't Pay? / What if My Spouse Doesn't Send a Payment?

If you are the paying spouse and have a change of circumstances, do not hesitate to let the court know as soon as possible. The court may then modify the amount you owe. Do not stop payment, because if you fall too far behind, the non-paying spouse can go to court and get a contempt order against you, requiring you to pay not just the overdue child support, but also interest and penalties. If you are a non-paying spouse, you can also pursue the payment through various options such as a wage assignment or a lien.

It is becoming increasingly common for couples to form stable, long-term relationships without ever getting married. This includes both heterosexual couples and same-sex couples in domestic partnerships. Many view marriage as an unnecessary social stamp on a relationship that is already strong. However, when the relationship falls apart, the lack of a legal framework can make it difficult for parties to know where they stand, what happens to their property and their children. If you ever have this problem, even though you are technically not getting a divorce, you should find a California family law attorney who can explain your rights and what to expect.

What Happens to Our House and Our Shared Possessions?

Members of an unmarried couple are not legally entitled to split the assets without a valid oral or written agreement. This is part of what is called "palimony," where one ex-partner pays the other payments that are like spousal support.

Without this sort of agreement, the division of property depends upon whether the assets were bought jointly or separately. If separately, the asset remains with whoever bought it, even if the other partner used it frequently. This can lead to a lot of division, which is why many unmarried couples have signed written agreements that discuss asset division. In contrast to other states, California does not recognize common law marriage.

What if I Want Custody of Our Children?

When an unmarried relationship dissolves, the mother automatically receives sole custody of the children. She has the discretion to permit or deny visitation or shared custody. She can also seek child support from her ex-partner, because California does not base child support on marriage, but on the best interests of the child. To do so, she must establish her ex-partner's paternity. This involves filing and serving a Petition to Establish Parentage on the father, and an Order to Show Cause for child support in a family court.

If the male partner wants custody or visitation, he must file a Petition to Establish Parentage and an Order to Show Cause for custody, visitation, and/or support. Should the male partner deny that he is the father, or if the female partner deny it, either can request a DNA test that will establish whether paternity exists. Once paternity has been established, the court can then order visitation rights or shared custody, unless the judge believes that it would not be in the child's best interests. If paternity is not established, the mother retains the sole right to decide visitation and shared custody. Likewise, the mother cannot expect to receive child support payments from her ex-partner.

Does a prenuptial agreement before marriage mean a kinder divorce? Many couples think so, which is why they enter into a signed mutual agreement beforehand. Often these couples have been divorced once before, and are aware of the pitfalls. But does a prenuptial agreement always ensure that the worst aspects of divorce -- painful fights over assets and child custody -- will be avoided? A California family law attorney can help you understand the benefits and drawbacks of a premarital agreement, and which would be right for you.

What is a Premarital Agreement?

It is a written agreement signed by both members of the couple before marriage. In California, prenuptial agreements are called premarital agreements and are governed by the Uniform Premarital Agreement Act. It requires that (i) both members of the couple fully disclose their financial situation; (ii) both members of the couple fully understand the terms of the agreement; (iii) both sign voluntarily; (iv) the agreement was created in a timely manner; and (v) that the terms of the agreement are fair.

The premarital agreement can determine how any financial asset -- such as house, cars, and income -- is divided in the event of a divorce. It is not used to dictate relations during the marriage (such as household chores).

Benefits of a Premarital Agreement

Couples who enter a premarital agreement often have significant assets and children from a previous marriage. They want these assets to pass to their children. Since California is a community property state, sometimes when one spouse's separate property is used for the family, it becomes community property. This property is then split between the two spouses in a divorce, depriving one spouse's children of their full inheritance. A premarital agreement makes it clear that certain assets must remain separate property.

Another benefit is that the tension and anger of fighting over assets is largely avoided. That can be especially beneficial for the children. Also, if you and your spouse know that one of you will stay home and raise the children, a premarital agreement can ensure that the stay-at-home spouse gets spousal support in a divorce.

For many people, the decision to divorce comes after years of domestic violence -- where one spouse has abused the other, as well as the children. For the abused spouse, it is often a difficult decision. He or she may still love the other spouse. The abusive spouse may have left the abused spouse questioning his or her self worth, or fearing that the abusive spouse will come after the abused spouse if he or she tries to get away. While most incidents of domestic violence involve male-on-female violence, there have been increasing reports on female-on-male violence. Also, domestic violence can affect same-sex marriages or domestic partnerships. What can you do if there is domestic violence in your family? In the event of divorce, how does domestic violence affect the spouses' legal rights?

If I Want to Divorce My Abusive Spouse, What Do I Do First?

The first thing many abused spouses do is get to a safe place and file for a temporary restraining order in family court. A "TRO" can be issued within 24 hours. Whether you are married, divorced, or in a domestic partnership, it can protect you from a wide range of abuse. A TRO prevents the abusive spouse from having any contact with you, your children, or your relatives. It may prevent the spouse from taking your children away. It can be granted without first giving notice to the other spouse, allowing you time to put a safe distance between you and the abusive spouse. The TRO will be effective even if you move.

A TRO usually lasts three weeks, but may be turned into a permanent restraining order. In addition to the above restraints, it may also provide for child support and spousal support. While a TRO or an EPO (an Emergency Protective Order, which can be issued by the police if you need immediate protection from your spouse and lasts five days) can be acquired without an attorney, at some point, you should find a California family law attorney.

What if My Spouse Was the One Who Earned the Money?

A history of domestic violence is one of the factors the family court considers when it determines spousal support. If you were unable to work during the marriage, the court might decide that you need spousal support until you can support yourself.

What if My Spouse Wants Custody of Our Children?

While there are cases where the abusive spouse gets custody of the children, determination of custody is usually based on several factors. This includes the best interests of the child; whether the abusive spouse has completed a 52-week batterer's program and not committed any other domestic violence; and whether the abusive spouse has followed court orders to take rehabilitation classes and obeyed the restraining order. Failure to do any of these things would jeopardize your abusive ex-spouse's claim to custody of your children.