How Do I Get Spousal Support/Child Support Orders?
Support orders may seem relatively simple to get – fill out a few forms, get a court date, show up and get an order. But there is a lot more to them than just paperwork.
Once the case has been filed you are now able to request the court make orders regarding issues such as Spousal Support, Child Support, Attorney’s fees, Custody/Visitation, and other areas relevant to your case. This is done by filing a Request for Order. (Form FL-300) The person asking for the orders is called the moving party. It does not matter if you are the Petitioner or the Respondent, either side may file a request for order.
The court can only make orders regarding the relief you are asking for in your Request for Order paperwork. It is very important to include all of the items for which you need the court’s assistance within your Request for Order. The Request for Order requires you to prepare a DECLARATION wherein you tell the court what you want, why you want it, and the legal reason your request should be granted.
Once you have completed the Request for Order (form FL-300) and attached the other necessary forms, it will need to be filed with the clerk and a date to have the judge hear your request will be set.
Go to www.courts.ca.gov/divorcerequests for more information.
The Request for Order must be served timely on the other party. The party who opposes the Request for Order must also file and serve the appropriate responsive declaration outlining their position on the issues asked for by the moving party. The person responding to the request for order cannot raising issues not asked for by the moving party.
Getting orders is not as easy as filling out forms and asking for orders. It is important to seek the advice of a family law attorney in order to maximize your chances for getting the orders you are requesting.
If the RFO involves support, attorney’s fees, or other monetary issues, it must be accompanied by an Income and Expense Declaration (Form FL-140). That form requires current information regarding expenses, assets, and debts. Certain documents must be attached to it, such as current pay stubs, cash flow statements, tax returns, or other proof of income. A request for support must also be accompanied by a supporting declaration that states why the supported party needs the financial help and why the paying party should provide financial support.
What Happens After Temporary Orders Are Issued?
How the rest of the case is handled depends upon each individual matter. Some cases will require discovery. This is the process that each party can ask for information from the other party. Some of these are in the form of written questions, demands for production of documents, subpoenas to employers or banks, even depositions which would require oral testimony to be given outside of court.
Sometimes expert testimony is required to allow the court to make decisions regarding certain issues. An expert may be required to help the court determine custody, the value of a family business, the cash flow from a family business, whether or not a person is capable of working and earning money.
When Can I Get Support? When Do I Have To Pay Support?
Support, like all other issues, does not happen automatically. A Request for Order must be filed before support can be ordered. Support is not “retroactive” to the filing of the Summons and Petition unless the Request for Order was filed at the same time.
Child support is mandatory in the state of California. Neither party can waive child support. Child support can be set at 0 if the parties agree. Child support can be paid voluntarily by either party. If the parties do not agree as to the amount of child support that should be paid, there is a child support calculator that the court relies upon to determine support amounts.
The amount that you or your spouse will pay depends upon a variety of factors. The 2 most important factors are (1) How much time each of you spends with your child or children, and (2) How much each of you earns. There are other factors that are important in determining child support. It is important to receive the help of a competent family law attorney in order to receive the best outcome regarding child support.
Spousal support, unlike child support, maybe limited or waived. Spousal support is not automatically ordered or granted. Spousal Support is usually not “for life”. The amount of spousal support ordered is dependent upon many factors. Spousal Support ordered at the beginning of a case may not be the amount that will be awarded on a permanent basis.
Temporary or Pendente Lite Support
Support orders that are made at the beginning of a case are made to help the supported party maintain the status quo. Of course, it is not usually possible to maintain the standard of living when the incomes of the parties were supporting one household and now need to support two households. The court can use the computer programs to set support when making ‘pendente lite’ or temporary support. The court looks at the current incomes of the parties and makes orders based upon the income and expenses that have usually existed for the prior 12 months. The court will not usually ‘impute’ income to a non-working spouse. ‘Pendente lite’ orders are very important and it is critical to get the best outcome for your situation.
Permanent support does not mean it will last forever, it is a term used to designate the orders have been made as part of a Judgment or final orders. Permanent orders can be changed but not always. It is important to get the best outcome possible to prevent financial hardship to you and your family. Spousal support at this stage of the process is determined by the court looking to a number of factors. Most of those factors are outlined in Family Code Section 4320. The court MUST take Family Code Section 4320 factors into consideration when making ‘permanent’ support orders. Very generally speaking spousal support is awarded to the supported party for 1/2 the duration of the marriage, if the marriage is less than 10 years, and will have no set time limit if the marriage is over 10 years. There are many things that can affect the outcome of a Request for Order for Spousal Support. Having the assistance of a Family Law Attorney will help you get the best outcome possible.
When a party is self-employed it adds a level of complexity. The self-employed spouse’s net pre-tax earnings must be determined after deducting business expenses. The reason for the complexity is that expenses claimed on a Schedule C are not always expenses the court is going to accept for the purposes of determining support.
For the most part, expenses do not factor into a support calculation. There are always exceptions.
When a spouse has been deemed “able to work” the court can “impute income”. This means that the support calculation will include a reasonable amount the spouse should be able to earn. This has tremendous impact on the support awarded.
Family Code Section 4320
In ordering spousal support under this part, the court shall consider all of the following circumstances:
(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
(1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.
(2) The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
(b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.
(c) The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.
(d) The needs of each party based on the standard of living established during the marriage.
(e) The obligations and assets, including the separate property, of each party.
(f) The duration of the marriage.
(g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
(h) The age and health of the parties.
(i) Documented evidence, including a plea of nolo contendere, of any history of domestic violence, as defined in Section 6211 , between the parties or perpetrated by either party against either party’s child, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.
(j) The immediate and specific tax consequences to each party.
(k) The balance of the hardships to each party.
(l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336 , a “reasonable period of time” for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336 , and the circumstances of the parties.
(m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4324.5 or 4325 .
(n) Any other factors the court determines are just and equitable.
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