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Posts

How Much Alimony Do I Qualify For?

October 17, 2019/in Family Law /by Gretchen Boger

It’s common to have questions about alimony during divorce cases. The laws on alimony differ state to state. In California, alimony is referred to as spousal support and can be issued in two forms. Lonich Patton Ehrlich Policastri, experienced lawyers in divorce and separation, have broken down these two types to help you know what to expect. 

When a couple is going through separation, they often wonder about alimony. Will they have to pay it? Do they qualify to receive it? How much will they receive? The truth is the answer varies case by case. Like many things in law, everything is specific to your case and your needs.

Alimony is a legal order to make support payments to one spouse during or after the divorce. In San Jose, there are two types of spousal support : Temporary and Permanent. Just because you qualify for one does not guarantee you’ll qualify for the other. Find out which one you may qualify for. 

Temporary Spousal Support

The purpose of temporary support is to maintain the status quo of the household prior to divorce during the separation case. The time frame this is owed will vary depending on the case. A spouse will be ordered to pay temporary support until a judgement is reached. This can last as briefly as 6 months or up to several years. The amount you will receive is calculated via a software program. The gross monthly income for both you and your spouse is input into a computer program and processed. An amount for monthly payments is then submitted to the court along with who is responsible for those payments. 

Stack of money being paid as alimony

This type of support is common in cases where the primary breadwinner runs off and refuses to support the other partner. The other partner may have given up a career or education to stay at home and look after the family. This places them at a disadvantage and the court will often order temporary support to help. If the primary breadwinner refuses to pay support, the payments can be taken directly out of their paychecks. Temporary alimony can be issued in addition to child support.

Permanent Alimony

While temporary support is decided exclusively on gross monthly income, the court uses more discretion when determining permanent support. Both parties will go to trial over the amount owed. Factors that go into determining the amount to be paid and the length of payments are net income of both parties, if children are involved, age of both spouses, the health of both spouses and if both parties have a job or if one is in need of training. The purpose of permanent support is to transition the lower earning spouse into a lifestyle that is sustainable and allows them to be self sufficient. It is also to compensate the lower earning spouse for any damage caused to their earning potential. This refers to what we mentioned in temporary support; a case where one spouse gave up a career or education to be the homemaker. 

Two rings sit on top of a divorce form with two ex spouses discussing alimony

The amount of time spousal support is owned depends on the length of marriage according to San Jose law. If a marriage is determined short term (less than 10 years), half the length of the marriage is typically rule of thumb but not guaranteed. Long term marriages (10+ years) are more open ended. They can be paid for 10 years or even longer. There’s no way to give a definitive answer to this as it’s determined on a per person basis. 

Get In Contact

If you live in San Jose, CA and have questions about alimony, reach out to the experienced attorneys at Lonich Patton Ehrlich Policastri. They offer free 30 minute consultations. Find out your chances of receiving temporary or permanent support. If you have children, you can learn about child support as well. 

Please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

https://www.lpeplaw.com/wp-content/uploads/2018/05/services2.jpg 1000 1000 Gretchen Boger https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Gretchen Boger2019-10-17 17:52:532021-12-22 19:55:34How Much Alimony Do I Qualify For?

Spousal Support Attorney, San Jose, CA

September 20, 2019/3 Comments/in Family Law /by David Patton

The decision to get divorced can be a difficult one; especially if you are unsure of how you are going to financially support yourself after severing ties from your former spouse. On the other hand, you might be wondering what you may owe your spouse during and after the divorce. These questions of alimony and spousal support can be difficult and complex, so it is important to consult a knowledgeable San Jose spousal support attorney; especially the attorneys at Lonich Patton Ehrlich Policastri.

What is Spousal Support?

Sometimes after a divorce, there is a financial gap or disparity left between the two former spouses with one spouse making substantially more than the other.  Spousal support, also sometimes referred to as “alimony,” seeks to correct that by helping the supported spouse maintain the same standard of living established during their marriage.

In its most basic definition, it is payments made from one spouse to the other. In other words, the financially stronger spouse makes payments to the supported spouse that follow the amount of money and time frame ordered by the court during the divorce proceedings. 

An attorney discusses the different types of spousal support with a client

What Types of Spousal Support Are There?

A party can ask for spousal or partner support to be paid while their case is still ongoing. There are two types of support that are awarded by the court.

The first type of support orders is called a “temporary spousal support order.” The goal with a temporary order is that the supported party will eventually become financially self-sufficient within a reasonable period of time.

The second type of support order that could be awarded is “permanent support” or “long-term support.” A permanent order can also be ordered by a judge once the divorce becomes final.

How is Support Calculated?

For temporary support, judges generally use a formula to calculate the amount.

On the other hand, judges consider a number of different factors to determine a final support order for a permanent spousal support. These factors include: the earning capacity of both parties and standard of living established during the marriage, the length of the marriage, and any evidence of domestic violence. If the court refuses to make an award of spousal support, the reason may be attributed to the dual careers of the couple and each party’s income earning potential.

How Does One Go About Getting Support?

If you or a loved-one are going through a divorce and would like more guidance through the process, including petitioning for support and alimony, please contact a San Jose spousal support attorney at Lonich Patton Ehrlich Policastri. Our firm offers free 30-minute consultations to new clients.

Please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

https://www.lpeplaw.com/wp-content/uploads/2019/09/counting-3125587_1920.jpg 1079 1920 David Patton https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png David Patton2019-09-20 01:21:552021-12-22 19:56:21Spousal Support Attorney, San Jose, CA

Spousal Support: The Basics

June 7, 2019/in Family Law /by Michael Lonich

The decision to get divorced can be a difficult one; especially if you are unsure of how you are going to financially support yourself after severing ties from your former spouse. Thankfully, the courts have established a system where you can still be supported by your spouse after marriage through the means of spousal support.

What is Spousal Support?

Sometimes after a divorce, there is a financial gap or disparity left between the two former spouses.  Spousal support seeks to correct that by helping the supported spouse maintain the same standard of living established during their marriage.

Therefore, in its most basic definition, spousal support are payments made from one spouse to the other. In other words, the financially stronger spouse makes payments to the supported spouse that follow the amount of money and timeframe ordered by the court during the divorce proceedings.  

What Types of Spousal Support Are There?

A party can ask for spousal or partner support to be paid while their case is still ongoing. This is called a “temporary spousal support order.” The goal with temporary spousal support is that the supported party will eventually become financially self-sufficient within a reasonable period of time.

Additionally, support can also be ordered by a judge once the divorce becomes final, which is called “permanent (or long-term) spousal support.”

How is Spousal Support Calculated?

For temporary spousal support, judges generally use a formula to calculate the amount.

On the other hand, judges consider a number of different factors to determine a final spousal support order for a permanent spousal support order. These factors include: the earning capacity of both parties and standard of living established during the marriage, the length of the marriage, and any evidence of domestic violence. If the court refuses to make an award of spousal support, the reason may be attributed to the dual careers of the couple and each party’s income earning potential.

How Do I Go About Getting Spousal Support?

If you or a loved-one are going through a divorce and would like more guidance through the process, including petitioning for spousal support, please contact our attorneys at Lonich Patton Elrich Policastri. We offer free 30 minute consultations with our Family Law Specialists.

Please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png 0 0 Michael Lonich https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Michael Lonich2019-06-07 09:00:102021-12-22 20:05:08Spousal Support: The Basics

Smith/Ostler Order: Accounting for Bonus Income’s Impact on Support Payments

October 19, 2016/2 Comments/in Family Law /by Virginia Lively

When calculating spousal or child support, courts look to a wage earner’s monthly income to determine an appropriate support amount.  However, what if the wage earner spouse or parent receives bonus income in the years after the initial support order is entered?  Support orders can be altered, but the process involves a court room, lawyers, and more legal fees.  In re Marriage of Ostler & Smith offers an alternative answer—the Smith/Ostler order.

A Smith/Ostler order takes into account a spouse or parent’s unearned or prospective income, detailing when and how any future, additional earnings should be incorporated into a support order.  However, because bonus income is prospective only, it may never be realized.  Calculating support based off an unknown and/or unguaranteed dollar amount can underestimate or inflate a support order.  Therefore, to account for the speculative nature of bonus payments, courts deal in percentages.

For example, in the seminal In re Marriage of Ostler & Smith case, the court awarded Wife 15 percent of Husband’s future cash bonuses.  If Husband received a bonus, he would give 15 percent of whatever amount he earned to Wife, but if Husband did not receive any cash bonuses, he would not pay additional support.  Importantly, the original support order would remain intact, and the parties would not need to argue over how much of the bonus income the supported spouse should be paid—the court order took care of those details and created a more easily administered support order.

In addition to cash bonuses, a Smith/Ostler order can account for future stock option income.  For example, in In re Marriage of Kerr, Wife and Husband, while married, improved their standard of living by exercising stock options that had increased in value.  Subsequently, during divorce proceedings, the court award Wife, through a Smith/Ostler order, a percentage of Husband’s income from any future exercise of those same stock options.

However, In re Marriage of Kerr presented an exceptional case where an additional measure besides a percentage amount was necessary to ensure that Husband’s spousal support order was not inflated.  The value of Husband’s stock had increased exponentially after he divorced Wife.  A specified percentage of the stock’s value would have increased Husband’s payments to a point that far exceeded the marital standard of living he shared with Wife.  Thus, the court concluded that under special circumstances, such as the case at hand, use of a Smith/Ostler order is permissible only if the court caps the amount of future income a spouse can receive at a number proportionate to the martial standard of living.

If you are considering a divorce or legal separation and would like more information about how either action may affect your finances, please contact the experienced family law attorneys at Lonich Patton Erlich Policastri.  We can help you understand and manage any spousal or child support issues that may arise.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

Sources:

In re Marriage of Ostler & Smith (1990) 223 Cal.App.3d 33

In re Marriage of Kerr (1999) 77 Cal.App.4th 87

 

 

https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png 0 0 Virginia Lively https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Virginia Lively2016-10-19 17:22:232021-12-22 20:12:25Smith/Ostler Order: Accounting for Bonus Income's Impact on Support Payments

Celebrity Prenuptial Agreements: What Is Enforceable and What Is Not.

June 26, 2015/in Family Law /by Mitchell Ehrlich

When celebrity couples get married, celebrity news outlets and magazines are always quick to report on the details of the couples’ prenuptial agreements. More often than not, these reports feature prenuptial agreement clauses that are outlandish and extreme. To some, these celebrity prenuptial agreement clauses seem laughable and ridiculous, but for others, they are right on the money and reflect the types of items we desire in our own prenuptial agreements.  Regardless of which camp you belong to and the validity behind these reports, the clauses in celebrity prenuptial agreements do offer some points to think about. For purposes of this blog, the question is not whether the reports on these prenuptial clauses are true, the question here is whether California courts will actually enforce these types of clauses.

Before we dive into specific celebrity prenuptial clauses/provisions, let’s cover some important implications related prenuptial agreements should be covered:

1. California is a “no-fault” divorce state. Many recognize the phrase “no-fault divorce” by its legal version, “irreconcilable differences.”

2. California is a community property state, meaning that spouses share 50/50 interest in property acquired during their marriage.

3. Courts faced with a prenuptial agreement with unenforceable clauses/provisions will either invalidate the entire prenuptial agreement, or will enforce the valid portions and just sever or ignore the unenforceable parts. Couples can prevent the former from occurring by including a “severability clause” or provision in their prenuptial, which provides that the invalidity of one or more provisions shall not invalidate the remaining provisions and allows the remaining provisions to be severed and enforced according to their terms.

4. Despite California being a community property state, premarital agreements may validly preserve the separate property character of premarital assets and characterize income and property acquired after marriage.

5. In California, premarital agreements that include a waiver or limitation of post-dissolution of spousal support are not per se unenforceable, as long as it was “executed by intelligent, well-educated persons, each of whom appears to be self-sufficient in property and earning ability, and both of whom have the advice of counsel regarding their rights and obligations as marital partners at the time they execute the waiver … .”

Now that we have covered some important aspects of California law as it pertains to premarital agreements, let’s look at some of the most intriguing clauses/provisions of celebrity couples’ prenuptial agreements:

  • Justin Timberlake and Jessica Biel: The “Fidelity Clause,” which states that if Justin cheats, Jessica gets a payout of $500,000.

Enforceable?

In California, this provision is unenforceable as contrary to the public policy underlying no-fault dissolution laws to the extent it imposes a penalty on one of the parties for “fault” during marriage.

  • Facebook mogul, Mark Zuckerberg and wife, Priscilla Chan: The clause that requires Mark to totally unplug and spend quality (non-wired) time with Priscilla at least once a week.

Enforceable?

An article in the ABA Journal from June 2013, refers to this as a “Lifestyle Clause.” The article explains that while most of these types of provisions are unenforceable in court, they are still useful because they help couples discuss goals and make them more likely to stick.

  • Catherine Zeta-Jones and Michael Douglas: Provisions provide that Catherine gets $2.8 million for every year they were married. Plus, another $5 million if Michael cheats.

Enforceable?

The first part may be enforceable. The enforceability of the $2.8 million per year of marriage provision depends on how the court construes the payment amount and structure. CA courts have enforced agreements that include a payment of a specified sum to one spouse when the purpose of such payment was to ensure that, if one spouse died or the marriage was dissolved, the other would be no worse off than he/she would have been had he/she remained single (typically the woman).

The amount “per year” language is also indicative of a pre-determined spousal support amount. California does permit couples to set their own spousal support agreements so long as the amount paid is at or above the state guideline.

However, if the court construes the amount to be “promotive of dissolution” then it will not enforce it. The provision at issue is not technically one lump sum payment in the event of dissolution, but rather is a one lump sum with a total contingent on the number years married. Typically, this could be considered “promotive of dissolution” as it offers Catherine a huge sum of money for dissolution, but-for two things-

(1) Catherine is a high-paid Hollywood actress, making this total amount per year less inducing of dissolution, and

(2) Catherine only stands to gain a large sum of money per this provision because the marriage has lasted over a decade, making this provision arguably more promotive of marriage.

As for the $5 million payout if Michael cheats?

Similar to the “fidelity clause” of Justin Timberlake and Jessica Biel, this is unenforceable in California.

  • Khloe Kardashian and Lamar Odom: Provisions state that in the event of dissolution, Khloe is to receive $500,000 for every year they were married, $25,000 in general support, their house, a new luxury vehicle at the end of every lease cycle, $5,000 per month for shopping, $1,000 a month for beauty care, and Lakers tickets for Kardashian’s friends and family.

Enforceable?

While to some readers these provisions may seem exorbitant, these amounts may reflect Ms. Kardashian’s level of lifestyle during the marriage. CA law recognizes premarital agreements where couples reorder property rights to fit their needs and desires, and participate in realistic planning that takes account of the possibility of dissolution, including provisions for spousal support. Thus, Khloe and Lamar were within the law to contract these post-dissolution lifestyle maintenance amounts.

Today’s review of prenuptial agreements was just an exercise. It was by no means a full review of the law on California prenuptial agreements. Further, the celebrity prenuptial agreement clauses discussed today were only used to illustrate the point of enforceability. This blog does not purport to confirm or deny the existence of the above-mentioned clauses.

If you have any questions about premarital agreements, or any other issue, the Certified Family Law Specialists at Lonich Patton Erlich Policastri have decades of experience handling complex family law matters. Please contact the Certified Family Law Specialists at Lonich Patton Erlich Policastri for further information.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png 0 0 Mitchell Ehrlich https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Mitchell Ehrlich2015-06-26 10:59:262021-12-22 20:31:19Celebrity Prenuptial Agreements: What Is Enforceable and What Is Not.

Billionaire’s divorcing wife wants at least $1 million per month

March 6, 2015/in Family Law /by Mitchell Ehrlich

How difficult would it be to spend $1 million dollars per month? In divorce proceedings that initiated last July, the wife of hedge fund manager Ken Griffin says that is precisely the amount that she requires to maintain her standard of living.

What are some of these expenses? They include:

–          $2,000 a month for stationary

–          $6,800 a month for groceries

–          $7,200 a month for restaurant meals

–          $8,000 a month for gifts

–          $60,000 a month for an office and professional staff

–          $160,000 a month for hotels

–          $300,000 a month for a private jet

She makes this claim despite the presence of a prenuptial agreement that she signed in 2004. Ms. Dias-Griffin is seeking to have the prenuptial agreement nullified on the basis of duress and coercion. Mr. Griffin argues that she was fully aware of what she signed. The terms of the prenup included that she received $25 million upon signing the document, $1 million every year thereafter and Ms. Griffin had the advice of independent counsel – namely three prominent law firms – when signing.

In papers filed in Illinois state court, Mr. Griffin claims he already paid Ms. Dias-Griffin some $37 million in payments under the premarital agreement, in addition to giving her a 50% stake in the couple’s $11 million Chicago home. Ms. Dias-Griffin claims that this would only leave her with 1% of Mr. Griffin’s net worth and should be voided since she signed it under duress.

“Anne failed in her initial effort to obtain these things from Ken in the name of maintaining the ‘status quo,’” the filing reads, according to CNBC. “Now she claims that these same expenses are in fact ‘child support.’”

If you don’t know who he is, Ken Griffin is one of the world’s wealthiest men. As the founder and CEO of Citadel, a global investment firm, Forbes estimated his net worth at a value of $5.5 billion in 2014.  Mr. Griffin married Anne Dias-Griffin in July of 2004. Ms. Griffin is also a founder of the Chicago-based hedge fund firm Aragon Global Management. Together, they have three children each less than 10 years old.

Typical Components of a Prenuptial Agreement

A prenuptial agreement can be a powerful tool in limiting property rights and alimony. A properly drafted prenup may be impossible to set aside. While the requirements for properly drafted prenuptial agreements vary from state to state, some of the general requirements in California for a valid prenuptial agreement under the California Premarital Agreement Act are:

–          They must be executed voluntarily;

–          Each party had independent legal counsel (or properly waived that right);

–          Had legal capacity to enter into the agreement;

–          There was no fraud, duress, or undue influence;

–          A seven day waiting period between being presented with the agreement and signing it;

–          Any other factor a court deems as relevant.

These are not all of the requirements, and each of the above mentioned requirements have elements that must be met in-and-of themselves. The Certified Family Law Specialists at Lonich Patton Erlich Policastri have decades of experience handling complex family law matters.  If you are interested in learning more about prenuptial or post-nuptial agreements, please contact the Certified Family Law Specialists at Lonich Patton Erlich Policastri for further information.

Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png 0 0 Mitchell Ehrlich https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Mitchell Ehrlich2015-03-06 14:25:572021-12-22 20:33:51Billionaire's divorcing wife wants at least $1 million per month

A sperm donor who signs a document waiving his parental rights doesn’t have to pay child support, right?

June 30, 2014/in Family Law /by Gretchen Boger

The answer is: not necessarily. Early in 2014, a Kansas man who donated sperm to a lesbian couple while also signing documents waiving his parental rights may have to pay child support anyhow. “I donated sperm and that was it for me,” he told CNN.

A judge ruled otherwise, saying that he must pay child support. This was because the lesbian couple conceived the child through an artificial insemination procedure that was carried out at home, which fails to conform to Kansas law. In Kansas, a licensed physician must be involved in an artificial insemination process.

After following up on an ad on Craigslist in March of 2009, sperm was donated and documents were signed waiving parental rights. Now that the child is four years old, Kansas law says he is the father and has to pay up.

The issue has come up in California as well. In 2012, a California appellate court held that the renowned bodybuilder Ronnie Coleman was not required to pay child support for triplets (one of whom tragically died) he fathered through artificial insemination after a court ordered him to pay over $4,000 per month.

In 2006, Coleman agreed to donate sperm at a California Sperm bank for a friend. He admitted having no interest in having parental duties but was willing to donate his sperm to a woman who allegedly had an on-again off-again sexual relationship with the bodybuilder in his past. Four years later he was slapped with a paternity suit forcing him to pay child support. After dutifully paying the child support for several years, an appellate court overturned the verdict.

California Family Code section 7613 says that the donor of semen provided to a licensed physician or licensed sperm bank for use in artificial insemination or in vitro fertilization of a woman, other than the donor’s wife, is treated in law as if he were not the natural father of a child thereby conceived.  The court found that because the facts of Coleman’s case fell squarely within the parameters of 7613, any agreements between them as to parenthood were void.

The language of Code section 7613 can also help women who want to withhold parental rights from men who have donated sperm. A previous California case, Steven S. v. Deborah D., is a prime example. There, a man attempted to establish paternity for a child he fathered through artificial insemination with a woman he was intimately involved with but to whom he was not married. The woman argued against paternity and the court agreed that 7613 guaranteed the right of women to bear children without fear of paternity claims.

Paternity cases can be dramatic and complicated. If you find yourself in a difficult child custody situation, please contact our California Certified Family Law Specialists (as certified by the State Bar of California Board of Legal Specialization). Our attorneys have decades of experience handling complex family law proceedings and offer a free consultation.

Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

See California Family Code § 7613.

Source: http://www.cnn.com/2014/01/23/justice/kansas-sperm-donation/

http://www.sandiegodivorcelawyerblog.com/2012/06/a-california-appellate-court-held.html

https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png 0 0 Gretchen Boger https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Gretchen Boger2014-06-30 17:22:042021-12-22 20:39:00A sperm donor who signs a document waiving his parental rights doesn’t have to pay child support, right?

Spousal Support: Are You Entitled to Any?

June 3, 2013/in Family Law /by David Patton

Ashton Kutcher and Demi Moore’s divorce has been stalled – and purportedly because Demi, who’s estimated to be $10 million richer than Ashton, is seeking spousal support from him in order to renovate her $25 million Central Park apartment. Though it doesn’t appear fair at first glance, courts take into consideration various factors to determine spousal support that could result in a judgment in Demi’s favor.

In regards to your case, could you be entitled to spousal support? Or conversely – could you obligated to pay spousal support for your wealthier spouse? As always in law, it depends.

California courts determine spousal support by taking various circumstances into account, as set forth in California Family Code Section 4320.* They include, but are not limited to:

  • How much the earning capacity of the party seeking support is affected from unemployment due to devoting time to domestic duties during the marriage;
  • How much the party contributed to the supporting party’s education, license, or career;
  • The ability of the supporting party to pay spousal support;
  •  The ability of the supported party to work without interfering with the interests of their children;
  • The needs of each party (determined by the standard of living established during the marriage);
  • The duration of the marriage;
  • The age and health of the parties; and
  • Any other factors the court determines are “just and equitable.”

Depending on how Demi and Ashton’s attorneys present these fact-sensitive issues, Demi just might get to renovate her sprawling New York apartment – on Ashton’s (many) dime(s).

Spousal support can be a complicated and confusing issue. If you have any questions regarding your spousal support rights and obligations in the event of a divorce, or you are simply looking for more information regarding your legal options, please contact our California Certified Family Law Specialists (as certified by the State Bar of California Board of Legal Specialization) at Lonich Patton Erlich Policastri. Our attorneys have decades of experience handling complex dissolution proceedings and are more than happy to meet with you.

Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

 

*Cal. Fam. Code § 4320

https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png 0 0 David Patton https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png David Patton2013-06-03 15:31:562021-12-22 21:24:53Spousal Support: Are You Entitled to Any?

Modification of Spousal Support: The Duty to Become Self-Supporting

September 24, 2012/in Family Law /by Mitchell Ehrlich

To modify a spousal support order, the moving party must show a material change of circumstances since the last order, even if the parties stipulated to the prior order.  A recent case, In re Marriage of Khera and Sameer, addressed if a party’s unrealized expectation that she would become self-supporting as of the spousal support order’s specified termination date could be a basis to modify the order and extend the term of spousal support.

In Khera and Sameer, the parties’ spousal support order provided for termination of spousal support on a specific date unless, before that time, the ex-wife brought a motion to modify for good cause.  At the time that the parties entered into the agreement, Wife was not working but the parties anticipated that she would be working as a social worker and able to support herself by the termination date.

Wife filed a post-judgment motion to modify the spousal support order and extend the duration of support.  She argued that there was a change of circumstances in the form of “unrealized expectations” regarding her ability to support herself.  She alleged that the parties’ expectation that she would be employed as a social worker making $42,000 annually was not realized as she was making approximately $700 per month at the time she filed for modification.

On appeal, the court noted that a material change of circumstances could be in the form of unrealized expectations, but circumstances accounted for in the prior order cannot constitute a change of circumstances.

The court stated that so long as the supported spouse has made reasonable efforts to become self-supporting, a change of circumstances may be in the form of unrealized expectations in the ability of the supported spouse to become self-supporting within a reasonable period of time.  Ex-wife needed to make a showing that, “despite her reasonable efforts, she was unable to support herself” in order for her unrealized expectation of self-support to constitute a change of circumstances.  Wife’s declaration did not show that she diligently acted to achieve financial self-sufficiency or that despite her reasonable efforts, she was unable to obtain to obtain full time work.  Rather, Wife made a voluntary decision to pursue a doctoral degree rather than finishing her MSW degree and going to work full-time.  The court found no abuse of discretion in the trial court’s finding that the evidence was insufficient to show a material change in circumstances and refusal to modify the judgment to extend spousal support.**

The  certified Family Law Specialists as certified by The State Bar of California Board of Legal Specialization at Lonich Patton Erlich Policastri have decades of experience handling complex family law matters.  If you find yourself on either side of a spousal support modification, contact  Lonich Patton Erlich Policastri for further information.

Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

*In re Marriage of Khera and Sameer (2012) 206 Cal.App.4th 1467.

**The court considered other issues in determining whether there was a material change in circumstances since the last order, such as Wife’s debt and disparity in income between the ex-spouses, and the marital standard of living; however, we are focusing on the duty to become self-supporting. Please read the case to understand the breadth of the issues and reasoning of the court’s decision.

https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png 0 0 Mitchell Ehrlich https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Mitchell Ehrlich2012-09-24 15:26:372021-12-22 21:28:18Modification of Spousal Support: The Duty to Become Self-Supporting

California “Long-Term” Marriages

February 23, 2012/2 Comments/in Family Law /by Mitchell Ehrlich

Recently, L.A. Lakers basketball star Kobe Bryant’s divorce from Vanessa Bryant made national headlines.  There has been speculation and discussion regarding the size of Vanessa’s potential divorce settlement, particularly due to the length of their marriage, which was more than ten years.  See L.A. Times, Kobe Bryant divorce: Prenup could have ‘saved half of his fortune.’  It has been posited that Vanessa purposefully waited until after their ten-year anniversary to ensure spousal support for a lengthy period.  However, while Vanessa will likely receive a significant amount of spousal support (Kobe’s net worth is estimated at $300 million), the focus on her “wisely waiting ten years to divorce” should not necessarily garner the attention it has.

According to California Family Code section 4336, there is a rebuttable presumption that a marriage of ten years or more (from the date of marriage to the date of separation) is a marriage of “long duration” for purposes of retaining spousal jurisdiction which could lead to lengthy support orders or even lifetime support.  This does not mean, however, that shorter marriages will not be considered marriages of “long duration.”  Courts have discretion to determine a marriage to be of “long duration” after evaluating and weighing underlying facts.  So while ten years of marriage may appear to be the magic number, it is not the only way a court will retain spousal support jurisdiction.  It is possible that a trial court could determine Kobe and Vanessa’s marriage was lengthy even if they were married for less than ten years.

The court’s ability to retain spousal support jurisdiction effectively creates an indefinite term support order, meaning spousal support could continue for life.  But because the court retains jurisdiction, it also has jurisdiction to modify or terminate the order upon a showing of “changed circumstances.”  Under Family Code section 4320, a court considers and weighs the various factors (including the duration of the marriage), and a “reasonable period” to become self-supporting, which could be shorter or longer than one-half the length of the marriage.  There may be cases where (because of age, health, etc.) self-support may not be a realistic expectation at all.  Thus, despite their ten-year marriage, a court retains the power to modify any support order following the divorce.

While Kobe and Vanessa’s divorce will likely not play out in the courts, it is likely that Vanessa will see receive a substantial amount of spousal support for an extended duration.  The Certified Family Law Specialists* at Lonich Patton Erlich Policastri have decades of experience handling spousal support issues in marriages of both short and long duration.  If you are contemplating divorce, please contact the Certified Family Law Specialists* at Lonich Patton Erlich Policastri, who can provide you with an in depth analysis of your issues.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

*Certified Family Law Specialist, The State Bar of California Board of Legal Specialization

https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png 0 0 Mitchell Ehrlich https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Mitchell Ehrlich2012-02-23 12:44:152021-12-22 21:30:35California “Long-Term” Marriages
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