Getting a divorce is a serious decision that calls for careful consideration of many factors like child custody, alimony, child support, who gets to keep the house, among others. California is the only jurisdiction that requires a waiting period for separating couples so that they can give this decision serious thought. Most divorces take six months from the day you serve your spouse with papers to get a marriage dissolution, while others take longer.
It is not unusual for couples to want changes months or years after the decree is granted. If you have already signed the papers only to find some arrangements no longer work in your favor, consider divorce modification. The Los Angeles Divorce Lawyer is adept in helping clients within the city and the greater Los Angeles area with divorce modification cases. We will help you to understand what this process entails and how we can be of service to your family.
Who is Eligible for Divorce Modification?
California is a no-fault state, which means an aggrieved spouse doesn't have to prove their partner did something to hurt the marriage. Divorce proceedings will carry on with attorneys from both ends ironing out child custody and other arrangements. You may have agreed to specific terms to ease the process or perhaps your decision was shortsighted, and now you want a different outcome.
Couples who are divorced and have custody and other arrangements in place are permitted by law to seek divorce modification at any time. It can be the party that initiated divorce in the first place, the person who got full custody, or the partner with limited access to the children. The person who begins this process must demonstrate a significant and ongoing change in circumstances that warrant the changes they seek. It could be landing a new job or losing one, relocating to another area, or issues relating to child-rearing.
Child Custody and Visitation Arrangements
The law permits parents to modify child custody and visitation judgments at any point after the marriage dissolves. If you are seeking changes, you must prove severe changes in your life are affecting the current plan. For example, a lifelong injury can affect the current arrangements for raising children. You must also show that the proposed changes are in the best interest of your children and not merely a way of getting back at your spouse.
Parents who are seeking slight amendments to the judgment, such as visitation schedules don't have the burden to prove severe changes in their life. This modification can be approved provided you show the proposed plan works best for your children. For example, a new work arrangement requiring a fixed travel schedule may necessitate switching visitation days to accommodate work while still honoring parental responsibilities.
A parent may want to modify custody arrangements due to severe problems such as child endangerment. The custodial parent may have put children in harm's way one or more times, or they behave in a manner that undermines proper child-rearing. For instance, the parent could forget to pick up kids from school, saying they got caught up in traffic, whereas they were negligent.
Physical or emotional abuse can make the other parent rethink custody and limit access to the kids to a few supervised visits. The same concerns can arise when one parent is abusing alcohol and chemical substances, thus making the home unsafe for children. It could be a new habit they have taken up, or they relapsed from months of staying clean. Moving to a new address can affect the current custody arrangements, and the other parent may seek divorce modification to ensure they still have access to the kids.
Separating partners must figure out how their children will be provided for after the divorce, so their lives are not interrupted after the decree is granted. The Statewide Child Support Guideline (California Family Code Section 4050) stipulates how to determine child support when parents are separating, which parent gets the funds, and how much. California considers both parents' incomes, time spent with the child by each parent, and how much tax deductions are available to each parent. These guidelines also apply to domestic partnerships.
The Child Support Formula
The California Family Code Section 4050 uses a complex algebraic formula [CS = K (HN - (H%) (TN)] to compute a dollar amount for child support. CS means child support for one child, so if you have more, you must multiply the CS amount by a mandated figure which usually depends on the number of children. K represents the cumulative amount set aside for child support by both parents. If one parent earns more, the law factors in how much time they spend with each child.
HN (high net) stands how much disposable income the more top-earning parent has per month while NT is the combined disposable income for both parents. H% is the estimated percentage of time the high earner will have primary physical responsibility for the kids as compared to the other parent. This formula notwithstanding, the general rule is, the higher the earning difference plus, the less time a more top earner spends with children, the more they pay.
You can use an online child support calculator to compute the dollar amount or have your lawyers do this for you. The Los Angeles Divorce Lawyer will ask you for the following details:
- Your gross incomes
- How much time individual parents spend with each child
- Income tax deductions that are available to both parents
- Compulsory payroll deductions like health insurance, pension funds, etc.
- How much each parent incurs in childcare expenses.
- Fundamental Principles for Determining Child Support
The following underlying principles guide the above child support formula:
- A parent has the primary responsibility to support their minor children as per their parent's situation and stage in life.
- Both parents have a dual obligation to support their children until they become legal adults.
- California Family Code §4057(a) presumes the formula to be correct, unless under particular circumstances where child support orders are allowed to fall short of what is mandated by law.
- Child support decrees must guarantee children get fair, timely, and satisfactory support, as per the high living standards in California and the high costs of raising children in this state.
Family Code §4057(b) provides scenarios where a judge may award child support differently (higher or lower) than what is computed by the algebraic formula. If the top earner has an extraordinary income, and applying the method would exceed the children's needs, the judge can order a lower but still reasonable figure. Sometimes, both parents have equal time with every child, but one parent spends a much lower or higher amount on housing. One parent may not contribute to the kids' needs as per their custodial time, or medical needs necessitate more money than stipulated. All these scenarios may prompt the judge to increase or decrease child support payments.
What is Child Support Add-Ons?
After calculating child support with the above formula and making amendments due to exceptional circumstances, a judge may still require parents to contribute more money equally. You can expect mandatory add-ons such as daycare services related to employment and discretionary add-ons such as paying for individual needs. If an equal split of these add-on expenses if not feasible, the court may divide these expenses as per Family Code §4061(b).
If your income has recently increased or decreased, you have a right to have child support modified to suit the new situation. The Los Angeles Divorce Lawyer understands child support guidelines. We shall guide you in determining how much more or less money you should pay moving forward.
Alimony or marital support arrangements don't always hold when circumstances change. You can seek a modification of terms if there is evidence that would render the judgment unreasonable. If the receiving spouse has moved on with another relationship and is now cohabiting with a new partner, you can have the spousal arrangements changed. The same applies when your ex-partner remarries.
You can also pursue a change in spousal support when the income of either party increases or decreases. The court will alter the terms of alimony, so they remain equitable or within reasonable limits.
Division of Property
Getting a divorce comes with serious decision making, and the division of assets is not usually easy. Warring spouses put up fights over who should take what property, and the back and forth seems endless. Your spouse may have hired an experienced attorney who got them more than a fair share of marital assets. Maybe they ended up with the family home, the vacation home, and a percentage of investments and left you struggling financially.
Community Property Laws in California
The state of California defines community property as any income or asset that was earned inside the marital union, and they are subject to equitable division. Sharing community assets does not necessarily mean splitting down the middle. Equitable division means one partner may get the family business while the other gets the vacation home, provided they walk away with assets of equal value.
Assets gained before marriage and after the official separation are considered separate property. If you inherited money, family heirlooms, or other property from your parents, your spouse could not get their hands on these assets. Gifts from your spouse like expensive art pieces, jewelry, cars, etc. are part of separate property. Therefore, your estranged spouse has no claim over them during or after divorce.
California stipulates that the community must be divided between the partners by first establishing the total cost of the marital assets. The next step is to subtract the financial responsibilities of both partners to arrive at the net value of the community estate. If there is no written will, each spouse is entitled to 50% of the net worth. Please note, only a valid written agreement can dictate how community property is divided.
Community property laws in the state cover a broad range of assets, including:
- All the incomes gained by either partner during the marriage, such as salaries, stock dividends, interest income, capital gains, and retirement accounts, etc.
- All property acquired during marriage using income that was made during the marriage. his may include commercial real estate, vacation homes, vintage cars, etc.
- All liabilities incurred during the marital union, including shared credit card debts.
Partners are entitled to the same division of community property even when there was only one breadwinner. Nonetheless, they can devise an amicable sharing plan to help with dividing a long list of assets such as a professional practice, retirement accounts, pension benefits, among other assets.
California courts usually don't change the division of property once the divorce is final. Nevertheless, the ex-spouses can agree on new terms by stipulation and order to alter the original agreement. Getting your former spouse to change terms may prove difficult but having an experienced lawyer makes a difference. The Los Angeles Divorce Lawyer can help you alter the transference of real or personal property if you can prove your partner was fraudulent during the divorce.
For instance, they may have hidden assets to mislead you into thinking they didn't own valuable properties or a massive chunk of savings. In this case, we shall petition the court to amend the division of assets to reflect these hidden properties.
How Can I Appeal a Divorce Decree?
As we have seen this far, signing the Final Judgment of Dissolution of Marriage does not deter you from contesting things later. The state allows you to pursue divorce modification in two ways:
Petition the judgment to a California District Court of Appeals
These petitions are brought before the District Courts of Appeal for the area where the original decision was filed. Alternatively, you can choose the locality where you and the separated spouse live. Once you register the motion to appeal, you must then submit a written justification or deliver an oral argument to support this move. The decree will only be modified if you can prove the superior court judge failed to apply the governing laws, thereby favoring one side.
You can also establish your spouse acted in bad faith like misleading the court about a child having special needs, so they get more child support. Appeals don't usually permit introducing fresh discovery. They merely examine the case to ascertain the lower court acted appropriately as per the existing laws when the decree was issued. While the original order may not be voided, we shall help you get the required modifications so you can move forward comfortably.
File a motion to modify terms with the court where the original judgment was issued
This route seeks to change the terms of the original decree, and this can be specific changes or a complete overhaul of the final decision. If you have been unsuccessful in getting an appeals court to alter some parameters of the decree, we can help you get modifications faster. Slight changes here and there will not disregard the other parts of marriage dissolution.
You can choose temporary changes on the part of the decree, or the proposed modifications can make sweeping changes to the divorce agreement, and their effects made permanent. If you find yourself grappling with unfair terms, speak to an experienced attorney to advise you on what modifications you need and how to implement them.
What is the Jurisdiction of Court?
Changes in the spousal support order can only be enacted if the court has jurisdiction over the matter. This ability can be terminated if the partners agreed to end the court's power over this decision, thus barring it from making more orders. If the court still has jurisdiction, both partners can sign a new agreement to overrule the current law. Alternatively, one person can file a petition requesting a change of the original decree.
Find the Best Divorce Lawyer Near Me
Going through a divorce is generally a difficult process that can be emotionally draining, not to mention expensive. You may have sought legal counsel on the division of assets, child custody, and other critical issues, and agreed to the terms laid out in court. Life changes like getting a new job out of state, completing alcohol and drug counseling programs, or other good news may necessitate revisiting child custody arrangements. Perhaps, you feel ready to have shared custody or more visitation with your kids.
Bad news such as losing your livelihood or your ex-spouse abusing drugs, or being abusive toward the kids can also trigger a child custody modification. If you have been paying alimony and your ex-partner gets married without informing you, it is your right to get these payments stopped. The Los Angeles Divorce Lawyer has experience in dealing with many cases where clients like you are unhappy with the terms of a divorce. It is our job to guide you in seeking amendments, so you and your children are not taken advantage of by the system. Call us today at 310-695-5212, so you can start getting expert advice on this situation.