How Can I Get a Spousal Support Modification in California?

Spousal Support ModificationSince life is unpredictable, there may come a time when you have to ask the court to modify a spousal support order. That is, you may need to request that the court reduce or even terminate the alimony you pay a former spouse.

You may be wondering how to go about requesting spousal support modification. If you’re in or near Fresno, the Law Offices of Rick D. Banks can help you through the process

Two Kinds of Alimony

California courts typically order two kinds of spousal support:

  1. Temporary support during separation or a pending divorce case; and
  2. Long-term support based on court calculations or agreements between the parties of the divorce.

Both types of spousal support are typically paid monthly, and you can modify or renegotiate them under specific circumstances as long as the original written agreement does not include a “no modification” clause. Jurisdiction is retained by the issuing court, which you must petition to make the change.

Usually there is no need to modify short-term spousal support, given its limited nature. Nearly all support modifications are associated with long-term support.

What Is the Spousal Support Modification Process?

Depending on the agreement or court decision, your spousal support order may require you to pay long-term spousal support:

  • Indefinitely.
  • Until the receiving party becomes self-supporting.
  • Until the receiving party remarries.

Whatever the type of support, if you request a modification, you must demonstrate a “material change of circumstance” since the last spousal support order. The court will expect you to prove this change. Usually, this means a significant decrease in income, such as from losing your job, receiving a demotion, or changing jobs. It may also result from you becoming physically injured, seriously ill, or handicapped, or otherwise unable to earn enough to pay as much alimony as before.

What Factors Does the Court Consider?

Before ruling on your potential spousal support modification, the court will consider several factors:

  • Is the receiving spouse self-supporting? Under the California Family Code, the receiving spouse is obligated to become self-supporting within a reasonable period of time after the divorce. This is typically half the length of the marriage. Most courts end spousal support after this point. You may also ask for its termination or reduction if your former spouse has made no reasonable efforts to become self-supporting.
  • Has the receiving spouse increased their earnings? If so, you have grounds to ask for a reduction or termination of support.
  • Have the receiving spouse’s estate and income potential increased significantly? If the supported spouse has a large enough estate and income (for example, through increased value of divided community property or through an inheritance), the court will take that into account. It may be sufficient for result in a reduction or termination of support.

The Court Will Also Check for the Following

Before deciding on a spousal support modification, the court will check for:

  • Remarriage of the receiving spouse. This automatically terminates most support orders.
  • Cohabitation of the receiving spouse. If your former spouse is living with someone in a romantic relationship, you can request reduction or termination.
  • Your retirement status. Your retirement is sufficient cause for termination of support if you’re legally old enough to retire (age 65). Moreover, your spouse can’t force you to work past age 65 just so you can keep paying alimony. At the very least, you should be able to get a significant reduction, especially if your post-retirement income has decreased.

A Fresno Attorney Can Help You With Spousal Support Modification

Changing a support agreement can be a complex process. However, we can help make the spousal support modification process a little smoother. With more than 15 years of family legal service under our belts, the Law Offices of Rick D. Banks has the experience needed to help you with any family law issue you may face. Call us today.

How to Handle a Child Custody Evaluation

child custody evaluation, 730 evaluationIf your divorce involves adversarial child custody issues, you can ask for or the court may order a child custody evaluation. Also known as a “730 evaluation,” this is basically a study of your family, not necessarily a challenge of your fitness as a parent. It involves a meeting and discussions with an evaluator chosen by the court, and the process is so common as to be routine in California these days.

Very likely, this will be new ground for you — and you’ll want to get it right. At the Law Offices of Rick D. Banks, we can help. Let’s begin by discussing how you should handle the 730 evaluation meeting, before moving on to how to discuss it with your children.

What to Do at Your 730 Evaluation

Be your best self at the meeting with your evaluator. Don’t try to be something you’re not, because it may be obvious to them. Most evaluators have handled hundreds of evaluations and are shrewd judges of character. Dress up nicely, be on time, and show respect. Don’t worry if you’re nervous; it’s expected.

Here are some other “dos” to keep in mind:

  • Tell the truth, no matter how painful.
  • Answer what the evaluator asks, without any asides.
  • Willingly admit to your strengths and weaknesses as a parent.
  • Recognize that it’s best for your kids to have relationships with both parents.
  • Let the evaluator know you’re willing to consider a variety of custody and visitation plans, but tell them which you like best.
  • Provide any missing paperwork or information ASAP, especially any involved with verifying your job and financial status.

Remember, your children’s well-being is what matters most here. That will definitely be the evaluator’s focus, so make it yours as well.

What Not to Do at Your 730 Evaluation

A negative attitude or bad behavior may irreparably damage your case during your 730 evaluation. Whatever happens, do not:

  • Lose your temper.
  • Volunteer negative information about your spouse. You can, however, answer the evaluator’s questions about his or her weaknesses as a parent.
  • Downplay your spouse’s strengths as a parent.
  • Rehearse what to say with your kids.
  • Miss appointments with your evaluator, or arrive late.
  • Break existing custody orders.
  • Try to manipulate the evaluator.

How to Treat Your Evaluator

The Golden Rule applies here, so polite respect is always your best bet. You don’t want to be a pushover, but don’t act overly aggressive, either. If you want detailed advice on how to treat your evaluator, consult with a lawyer experienced with these evaluations.

Cooperation is most likely to get you the outcome you want. The evaluator is not your enemy, so don’t treat them as such. You may not get everything you want, but go into the evaluation expecting that possibility. Again, the evaluator wants what’s best for the children, not you.

Advise Your Children to Be Polite and Truthful

Whether toddlers or teenagers, your kids will be nervous about the evaluation process. They may or may not have decided who they want to live with. Soothe their fears, and explain to them that the evaluator will keep their best interests in mind. Advise them to behave well and answer all questions truthfully. Let them know the evaluator is just trying to learn about your family, and explain that the evaluation is needed because you and your spouse can’t agree on what’s best for them.

Talk to an Experienced Attorney About Your Child Custody Evaluation

At the Law Offices of Rick D. Banks, we have more than 15 years of experience in handling family law, including child custody cases. Call us today for a free evaluation. We can guide you every step of the way, helping to ensure the best possible outcome for your child custody evaluation.

Child Support Enforcement: How Do You Deal With a Deadbeat Parent?

child support enforcementIn every state, strict child support enforcement laws hold divorced parents to continually support their children. However, in the past, many kids have grow up in homes without the financial support they need. This lack of support has led to many problems for the children. Fortunately, deadbeat parents are finding it harder to skip out on child support. Federal, state, and local agencies can employ harsh child-support collection tools. Learn about child support enforcement laws as well as how they work below.

Establishing Child Support

First, you must establish child support through a court order. If both you and your spouse agree on an appropriate amount for support, a judge will approve the agreement and make it official. However, if you and your spouse cannot agree, you’ll need to ask the judge to set the amount. To better your odds of an appropriate amount, consider hiring an experienced child support attorney to file a request for a child support order.

If you cannot afford an attorney, your local child support service office can help you establish, collect, and enforce, child support orders. These type of services act on behalf of the child receiving the financial support, rather than representing either parent. These services can also obtain medical support orders, establish paternity, and locate deadbeat parents.

How Child Support Enforcement Works

Once a child support order is established, the order must be obeyed. If the delinquent parent does not meet child support requirements, the custodial parent may request help from an attorney or from their local Office of Child Support Services (OCSS). The delinquent parent can be subject to the following child support enforcement tools:

  • Wage Deductions: a custodial parent may request a wage assignment or income withholding order. Through wage deduction, you can directly take child support through the non-custodial parent’s wages.
  • License Revocations and Suspensions: the delinquent parent may have their professional license(s) and/or driver’s license revoked or suspended.
  • Passport Restrictions: to prevent the delinquent parent from leaving the country, they can be prevented from renewing their passport.
  • Intercepting Federal Income Tax: if the delinquent parent has a large tax refund, the state can intercept that refund to cover missing child support payments.
  • Contempt of Court: this is a legal order that can result in jail time or a fine for the delinquent parent. To enact this legal order, the custodial parent must go to the court and obtain the order from a judge.

Using the child support enforcement tools above, you can force deadbeat parents to pay the support they owe.

When to Get the Federal Government Involved

You can involve the Federal Government, or the U.S. Office of the Inspector General (OIG), in child-support cases when the delinquent parent lives in a different state than where the child resides, and if:

  • The amount owed is more than $5,000
  • Child support has not been paid for over 1 year
  • The non-custodial parent travels to another county or state to avoid paying child support

For the first offense, the delinquent parent can be subject to fines and/or up to 6 months imprisonment. For a second offense, or for cases where child support has not been paid for two years or more, or if the amount owed is $10,000 or more, the delinquent parent can be subject to 2 years imprisonment and/or up to $250,000 in fines.

The OIG keeps an online list of the most notorious deadbeat parents. “Project Save Our Children” (PSOC) both investigates and prosecutes the country’s worst deadbeat parents and child support cases. It is a multiagency task force with members from the Office of Child Support Enforcement, the Administration for Children and Families, OIG Special Agents, the U.S. Attorney’s Office, the Department of Justice, and the U.S. Marshals Service. Under the Deadbeat Parents Punishment Act, PSOC identifies, investigates, and prosecutes the worst child support offenders that meet the criteria for Federal Prosecution.

Get Help With Child Support Enforcement

You can get help with child support enforcement in a number of ways. One way is to consult a family law attorney. Contact the Law Offices of Rick D. Banks today to learn more about how to deal with an uncooperative or deadbeat parent.

The Best Interest of the Child: What the Courts Consider When Determining Custody

best interest of the childWhen it comes to deciding disputed child custody cases, the “best interest of the child” standard plays a central role. This standard, however is not clearly defined. It thus lends itself to a judge’s own subjective ideas about what’s in the best interest of the child. Though this amorphous standard can vary between judges, there are a few key factors you can expect all judges to consider.

Learn about these key factors and how judges use them to determine what’s in the best interest of the child.

Age of the Child

The “tender years” doctrine is an old legal principle in family law that states that younger children (ages 4 and under)  should be in custody of their mothers. Since the late nineteenth century, this doctrine has slowly gone out of fashion. Several courts hold that this doctrine breeches the equal protection clause, which is part of the Fourteenth Amendment of the Constitution. However, some judges still believe the principle behind it is sound, especially when it comes to a nursing baby.

Living Situation of Each Parent

The living situation of each parent can play a big role in deciding what’s in the best interest of the child. Although, this factor can sometimes be a chicken-and-egg dilemma. For example, sometimes the parent that stays in the family home is awarded custody because it could give the child a sense of stability and continuity.

However, in contrast, sometimes the parent that is granted custody is also awarded the family home. So, just because you currently reside in the family home, doesn’t mean you’ll necessarily receive custody. Although, if your living situation reflects your desire to spend more time with your child, then you are more likely to receive custody. Don’t expect getting primary custody if you are couch surfing your friends apartments while you get back up on your feet. Also consider your home’s proximity to your spouse and your child’s school and social activities. The closer you are to these things, the more likely a judge will grant a time-sharing custody plan.

Willingness to Support Your Spouse’s Relationship to the Child

Judges can also look at how you and your spouse cooperate with each other in regards to the parenting schedule. The more cooperative you are, the more likely you are to receive custody. Courts look down on the parent that’s trying to alienate the child from the other parent. If one parent has a record of bad-mouthing the other parent in front of the child, the judge may use that information to grant the other parent custody. Also, if you want to receive custody, do not interfere with visitation from the other parent.

Relationship With the Child Before the Divorce

Sometimes a parent who wasn’t involved much with their child’s life before the divorce suddenly develops a desire to spend more time with them after. This sudden desire is often sincere, and a judge will recognize that sincerity. This is especially true if that parent dedicated themselves to parenting during the separation period. The judge will evaluate the change in heart and determine if it’s sincere or if that parent is just trying to win one over the other parent.

Child’s Preferences

Typically, children aged 12 years old or older have some say towards their own custody and visitation. A judge may pull the child aside to find out their personal preferences. In some states, the court considers the child’s preferences when deciding custody. However, other states disapprove of bringing the child into it at all.

The Child’s Best Interest in Continuity and Stability

Most judges believe that piling more changes onto the already traumatic transition of divorce isn’t good. They believe that keeping the status quo would be in the best interest of the child. So, the parent arguing for major change in custody is less likely to be granted. If you’re arguing that the current custody schedule in place is working fine, then you have leg up over your spouse.

Contact a Child Custody Lawyer Today

These are just a few factors judges consider when determining custody. To learn more about what the court will consider when determining the best interest of the child, contact the Law Offices of Rick D. Banks today.