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Glossary of Child Support Terms

The process of setting San Jose child support payments can be confusing at times. Here’s a list of some unfamiliar terms you might encounter during your divorce.

  • Arrearage: Overdue child support that a noncustodial parent has failed to pay is called arrears. The term arrearage refers to the overdue amount plus the interest that is charged on the debt. Having arrearage subjects a parent to penalties such as the loss of his or her driver’s license, passport, and/or professional licenses.
  • California State Department of Child Support Services — also called DCSS: This is the office that oversees the state’s child support program.
  • Compromise of Arrears Program: A program by which the government accepts a partial payment of past due child support in exchange for forgiving some of the debt that is owed. Not all parents will qualify for this program.
  • CP: An abbreviation for custodial party. This is the person who is physically responsible for the child the majority of the time. The CP is normally the one who receives child support payments.
  • Income Withholding: If a parent paying child support works for someone else, the employer will automatically deduct payments from his or her earnings to satisfy the court-ordered child support obligation. This ensures that the debt is paid in a timely fashion.
  • LCSA: An abbreviation for local child support agency. This is the county or regional office providing child support services to parents. The LCSA is part of the California State Department of Child Support Services.
  • Medical Support Order: If the child has medical or dental expenses not covered by insurance, a medical support order can be issued to require the noncustodial parent to assist with these costs.
  • Modification: An adjustment of the original child support order due to a change in circumstances. A decrease in payments might be ordered due to the paying parent’s unemployment. An increase in payments might be ordered if the paying parent’s income has significantly increased or there are added expenses associated with the child’s basic needs, such as a rise in daycare costs or school tuition. Modifications are not done automatically. They must be initiated by one of the child’s parents.
  • NCP: An abbreviation for noncustodial party. This is typically the parent who has visitation rights for the dependent child and is paying child support to the custodial parent.

Do not be afraid to ask your San Jose child support attorney questions if you encounter unfamiliar terms in the mailings you receive regarding your support payments or if you have questions about how the law applies to your specific case. Being an active participant in the process is the best way to ensure that the interests of both you and your child are protected.

Creating an Estate Plan Around Your Prenuptial Agreement

If you have children from a previous marriage and are thinking about taking a second trip down the aisle, San Jose family law attorneys recommend using a prenup as part of your estate planning process.

A prenup can be used to keep preexisting assets separate from those you wish to share with your spouse in the event of a divorce. For example, you may wish to protect a family business and/or real estate so that it may be passed on to your children.

If you want to draw up a prenup for a second marriage, keep in mind that you’ll need to redo your will and any existing trusts at the same time to ensure that the documents do not contradict each other. Since it is considered a legal contract, the terms of a prenup could theoretically be used to override a will or build a case for your spouse to contest the terms of your will after your death.

Using the prenuptial agreement as the basis for your estate plan, you can distribute your assets in a way that best provides for all of your heirs. For example, if you have a business that you want your children from a previous relationship to someday manage, you may create a family limited partnership. This would provide your spouse with income from the business without giving him or her control over the business’s daily activities. Assuming you work with an experienced certified public accountant before completing the transfer of assets, forming a family limited partnership should have no adverse tax consequences. If your children are still minors or are not yet equipped to handle the responsibility, you can name a secondary person, such as a close family friend, as manager of the LLC that holds the family limited partnership. You can then set ages at which your children will become co-trustees or sole trustees.

Since homes have both sentimental and financial value, distribution needs to be handled delicately when creating your estate plan. A qualified personal residence trust can be used to ensure that your surviving spouse is allowed to remain in the marital home while still preserving the right of your children to someday inherit the property.

Aside from business and real estate holdings, retirement accounts are often one of the largest assets to consider. If desired, a trust can be set up to hold retirement assets for the benefit of your children from a previous relationship. However, your spouse needs to formally waive his or her right to be a beneficiary in the 401(k) plan.

Your San Jose family law attorney can answer any additional questions that you may have regarding how to prepare a prenup that fits in with your estate plan.

When Will My Alimony Payments End?

If you are relying on alimony payments to make ends meet after your divorce in San Jose, you may be wondering under what circumstances alimony can be modified or terminated.

If your marriage lasted ten years or more, it is considered a marriage of long duration under California law. This is significant because the court does not set a definite termination date for spousal support when ending a marriage of long duration. If your marriage lasted less than ten years, alimony payments are presumed to be necessary for no more than half the length of the marriage.

Alimony payments will be terminated if you remarry. If you live together with a partner in a romantic relationship, you may also see your alimony payments reduced or terminated. Living with a roommate to save money will not affect your spousal support payments, however.

Your former spouse is allowed to ask for a reduction in alimony payments if his or her income significantly decreases through involuntary unemployment or underemployment. Modifications can be approved for self-employed payers as long as the reduction in income is not due to a simple desire to work fewer hours.

California law states that your former spouse can not be forced to work past the age of sixty five for the purpose of paying alimony. If your spouse is forced into early retirement by his or her employer, this may also have the effect of ending alimony payments.

If your former spouse believes that you are not working towards financial self-sufficiency, he or she can ask for a vocational examination. This is a form of discovery in which a trained employment evaluator looks at your education, skills, past work experience, and the current job market to determine if you should be able to find employment. The court can’t force you to seek employment, but they can enter an imputed income for you based on the findings of the evaluation. This could possibly have the effect of lowering your alimony when new payment amounts are calculated.

Since alimony awards in the state of California rely on many different variables, it is best to discuss your spousal support concerns with a qualified San Jose divorce attorney.

How Do I Get Spousal Support?

Child support is automatically determined during a Santa Clara County divorce, but spousal support awards must be requested by the lower earning spouse. Spousal support is awarded to the lower earning spouse if he or she requires extra assistance to establish an independent life post-divorce and the higher earning spouse has the ability to reasonably pay the support. Spousal support is most often awarded when the lower earning spouse made sacrifices during the marriage to support the higher earner’s career, such as working only part time to help care for young children. Spousal support is normally considered tax deductible for the paying spouse and taxable income for the supported spouse.

Spousal support generally ends when one of the spouses dies, the person receiving the support remarries, or the court order declares that it ends. Cohabitation can sometimes trigger an end to spousal support, depending on how the terms of the agreement are stated.

A reasonable period of time for spousal support is usually determined to be one-half of the length of the marriage, but the judge has the discretion to avoid setting an end date to spousal support if the couple has been married ten years or more. California law states that marriages of ten years or more are considered “long term” marriages subject to special protection.

If the income of the person paying the support goes down, he or she can go back to court and request that the amount of the payments be lowered to reflect the change in circumstances. Support payments continue to accumulate at the previously determined rate until this is done and there is a 10% per year interest charge on the overdue balance.

The laws surrounding spousal support can be complex, so this issue should be discussed with your Bay Area Divorce attorney as soon as possible. If needed, your attorney can request a temporary order of support so you have the funds needed to pay for your living expenses while your divorce is in progress.

Retirement Accounts as Marital Assets

One common mistake people make during a San Jose divorce is failing to consider how divorce will affect their retirement.

A recent Securian Financial Group survey of over 500 divorcing couples who were married for ten years or more found that 31% did not claim a share of their spouse’s retirement benefits because they weren’t aware that they were entitled to a portion of these marital assets. Among those surveyed after the divorce, 25% said they wished they had known more about how to divide retirement benefits.

In California, retirement assets accumulated during marriage are considered community property that belongs to both spouses. This is true even if one spouse only works outside the home part time or not at all. However, any retirement assets accumulated before marriage belong solely to the person who earned them. This means it’s possible for a retirement account to have funds that are classified as both separate and marital assets.

If you are the lower earning spouse and have minimal retirement funds in your own name, you should prioritize retirement over all other marital assets. In the long term, retirement assets are more beneficial than taxable alimony payments or gaining possession of a house that you will struggle to maintain on your own.

Retirement assets are divided with what is known as a Qualified Domestic Relations Order (QDRO). A QDRO is a legal document that protects both of you from owing taxes when funds are transferred from one party to the other.

By law, you are allowed to withdraw money from your former spouse’s 401(k) or 403(b) plan one time without incurring the 10% early withdrawal tax penalty for people under age 59 ½. Most financial planners recommend not taking advantage of this perk, however, since allowing the money to continue to grow tax-deferred is the best way to ensure a secure retirement.

Your San Jose divorce attorney can answer general questions regarding how retirement assets are divided, but hiring a financial planner is strongly recommended. A skilled financial planner can provide you with specific advice regarding how to create a secure post-divorce financial future.

Hiring a Child Support Attorney to Handle Your Case

San Jose child support is automatically set as part of your of your divorce settlement, but you may need to go back to court at a later date to ask for a modification or to seek assistance in collecting payments that are overdue. If this happens, hiring an experienced child support attorney can make it easier to navigate the state’s family court system.

A child support attorney can help with issues such as:

  • Collecting overdue child support
  • What to do if you think your spouse is lying about his/her income
  • How to collect child support from a self-employed parent
  • Asking for an increase in child support because of a change in the child’s needs or living expenses
  • Extending child support payments for a special needs child who is unable to live independently
  • Requesting a reduction in child support due to financial hardship
  • Requesting a reduction in child support due to a change in custody arrangements
  • Understanding how remarriage or the birth of an additional child may affect a child support order
  • Requesting the use of imputed income to determine child support for a parent who refuses to find employment

Our article Questions for Your Child Support Attorney provides additional information regarding some of the issues that a child support attorney can help with.

Questions to Ask When Interviewing Your Attorney

Basic questions to ask before hiring any San Jose child support attorney include:

  • Do you specialize in family law?
  • How many years have you been practicing?
  • Will you personally be handling my case? If so, do you have time in your schedule to give it your full attention?
  • What do you see as your ultimate goal in handling my case? Are there any specific legal challenges I should be aware of?
  • Do you have a list of former clients who can provide testimonials regarding your services?
  • Do you work on a retainer?
  • Is there an hourly rate in addition to the retainer?
  • What hourly rate is charged if I speak to your secretaries, paralegals, or other staff members?
  • Can you estimate the total cost of your services upfront?
  • What factors could potentially influence that estimate?

 

Extended Summer Visits Don’t Permit a “Break” in Child Support

After a Santa Clara County divorce, it’s common for the noncustodial parent to enjoy an extended summer visitation with his or her child. Visits of two to eight weeks allow for activities that would not be possible during the school year. Since child support is based in part on how often the child is physically in each parent’s care, many people find themselves wondering if paying child support is necessary during the extended summer visit.

You might feel like you deserve a break from child support payments if you’re currently paying for your child’s food, shelter, clothing, and travel expenses, but it would be a serious mistake to stop making your regular child support payments during your summer visitation with your child. Even if you are keeping your son or daughter for several weeks at a time, you still must make all court-ordered support payments. Child support is based on custody and visitation schedules for the entire year, not just a temporary change in circumstances. Your scheduled summer visitation has already been taken into account when calculating your support payment.

If you stop making child support payments during an extended summer visit, you risk being placed in arrears. This could result in fines, a driver’s license suspension, the withholding of your passport, or even jail time. Interest on unpaid child support continues to accumulate over time, so you will eventually end up paying much more than you would have if you had simply made the original requested payment.

However, if you and your ex mutually decide that a permanent change in custody or visitation is in order, you should speak to an attorney to see if this will affect your child support. Depending on the disparity in your incomes, having your child physically in your care for an extra day or two each week may result in a lower child support payment. Unfortunately, since the court does not periodically reevaluate child support orders, the only way to know if you’re paying the correct amount of support is to ask an experienced San Jose child support attorney.

Understanding How Community Property Laws Affect Division of Property During a Divorce

San Jose family law attorneys say property division concerns are common when a couple files for divorce. Most states follow the equitable distribution system of dividing marital assets, but California is a community property state. In the United States, community property states include: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin.

In California, each spouse will generally own a fifty percent interest in any asset (and owe 50% of any debt) classified as community property. This includes real estate, vehicles, home furnishings, money in checking or savings accounts, and investments. Community property is sometimes called marital property because it belongs to both spouses equally — even if one person did not work outside the home or earned much less than the other throughout the marriage. Marriage is treated much the same as a general partnership, for financial purposes.

Generally, items acquired and/or debts incurred during the marriage will be community property. If a valid prenuptial agreement were executed before the marriage it could change this general presumption. Items that are separate property include assets acquired before the marriage, items received as gifts for one party only, or inherited assets. Having the written records showing where an item of property came from can be important. Please keep in mind that wedding and engagement rings are presumed to be gifts to one spouse only and are thus usually separate property under California law.

When negotiating your divorce settlement, you should understand that a Court will be required to divide the community estate equally. Usually parties will agree to a division that is approximately equal, but they are not required to do so. When negotiating you may need to forfeit interest in some marital assets if there are specific items that you want to keep in your possession. If there are items you feel strongly about keeping, it’s helpful to make a list of equivalent assets that you are willing to part with before the negotiation process begins.

You will need to disclose the assets and debts you know about to the other party. If the value of an asset is not easily determined, or you disagree with your spouse about the value of an asset, experts may need to be brought in for appraisals. Business assets are the most common assets in need of appraisal, but expert assistance may also be required to determine the value of real estate, antiques, or collectibles. Pensions and other retirement holdings should also be looked at carefully, and will often need to be divided by a expert.

A Judge will only get involved in the division of marital property if you and your spouse can’t come to an agreement on your own. You are advised to consider the cost of litigation versus the potential benefit of being awarded specific marital assets.

The same principles that apply to the division of assets also apply to the division of marital debt in a community property state. Your San Jose divorce attorney can explain this issue in greater detail. You can also refer to our discussion of property division for additional information.

Determining Your Date of Separation

For many couples seeking a Santa Clara County divorce, determining the date of separation will be fairly straightforward. However, if you’ve been living apart from your spouse for several months before you decided to file for divorce or you were unable to move out of the home you shared due to financial concerns, there will probably be disagreement as to when your separation officially occurred.

If you’ve been living apart, the Court will ask when one of you intended to end the marriage. Intention is crucial because couples sometimes live apart for work-related reasons even though they intend to stay legally married. To determine the date of separation, the Court may look at evidence of living as a single person would. This might include going long periods of time without contacting each other or starting a relationship with another party.

If you are still living under the same roof, there would need to be evidence of unambiguous conduct amounting to a physical separation. For example, the date at which one of you moved all of your belongings into the guest room after publicly announcing your plan to divorce may qualify as the date of separation, although there is case law that says that this would not be enough.

The overwhelming majority of the time the date of separation has serious consequences effecting the division of marital property, and as a result of this substantial effect it is very common for people to stretch the truth — really hard — to try and make the date of separation that they want for financial reasons somehow fit the facts. The issue of the date of separation is litigated with great frequency. Generally, assets acquired and/or debts accrued after the date of separation are considered separate property, while those same assets and/or debts, if acquired/accrued before the date of separation, will be community property. Community property is generally split 50/50, but separate property is not. A recurring theme in Santa Clara County divorces is the spouse who went on a large shopping spree around the time they or you asked for a divorce.

If unvested stock options are an asset in your case the date of separation will have a huge impact, but the determination will also depend on which formula is used by the Court. If you have these more complicated type issues to deal with it is highly advisable that you consult a good Family Law attorney.

If your spouse is pressuring you to agree to a date of separation that you feel is inaccurate, it is best to contact an experienced San Jose divorce lawyer before you proceed. You do not want to inadvertently agree to a date of separation that will result in a less favorable settlement.

How Is Child Custody Determined?

Determining child custody arrangements can be one of the most challenging parts of a San Jose divorce.

Joint Legal Custody means that the parents share the decision making authority regarding things like choosing which school and/or doctor the children will go to, and both parents have the right to see the children’s grades. Usually the timeshare between parties who share Joint Legal or Joint Physical Custody will be close to 50/50, but that is not legally required in California. A parent with Sole Legal Custody will be able to make many decisions effecting the children without being required to ask the permission of the other parent.

California Courts presume it is in the best interests of the children to have frequent and continuing contact with both parents. It is believed that children do best when they are allowed to develop a loving relationship with both parents. However, Sole Custody could be granted if both parents agree to the arrangement or there are other factors that indicated Joint Custody is not in the child’s best interests.

Children over the age of fourteen may testify regarding their child custody preference, but the Judge is not legally obligated to honor the child’s wishes. The Judge will not abide by the child’s wishes if there is evidence the child has been manipulated by one parent or that the child’s preference is based on a desire to avoid the rules, discipline, and structure that are necessary in a safe and loving home.

If one of the parents has a history of Domestic Violence against the child’s other parent, the court will tend to rule against granting custody to that parent unless the parent has completed a batterer’s treatment class and/or a parenting class and there have been no further acts of violence committed.

The Court has the authority to order a test for illegal drug use prior to making a custody determination. A positive test won’t automatically disqualify a parent from obtaining custody, but it will be considered as evidence along with other factors that illustrate the parent’s character and commitment to the child.

In rare cases, custody may be granted to a third party if it is determined that neither parent is a suitable guardian. This is most often associated with cases in which there is evidence of parental drug abuse, mental illness, or a history of child neglect. Third party guardians are most often a grandparent, aunt, or uncle.

It is best to contact an experienced child custody attorney in San Jose for assistance if you have concerns about a custody-related issue.