Modification of Support - Child and Alimony After Divorce

Parties often agree to support amounts in the initial divorce, or the amounts are ordered by the court.

After the divorce judgment is "final", that parties have what is referred to as a "Permanent Support Order."     However, that order is only as "permanent" as the parties' financial situations remain unchanged.     Some factors that might cause a reduction, increase, or termination of support are as follows:

1)    The supported party remarries.     Once the supported ex-spouse remarries, Alimony or Spousal Support ends.     However, child support can continue depending on other factors.

2)     Either party dies.    If either the supported party or the paying party ends, the support will also terminate.    However, if there are minor children and the payor survives, child support may continue if the children do not live with the payor.    Also, it is often to have a life insurance policy in place for the payor to preserve income.    Talk to a qualified Palos Verdes Divorce Lawyer such as Kevin J. Kensik about this issue.

3)     A child turns 18 and finishes high school or turns 19.    Once a minor child reaches age of majority and completes high school, that child's support will end unless there are extenuating circumstances.    However, support for other siblings may continue and Alimony may change.

4)     Either the paying spouse's income changes significantly or the supported spouses income changes.    The amount of support paid is determined by both parties' incomes.   If there is a "change in circumstances" meaning a significant change in either party's financial position, the court will consider modifying support.

5)     The supported party is "cohabitating" with another person.   If the supported party is receiving financial assistance, housing or "commingling" funds or expenses with a partner whom they are living with, the court may consider reducing or terminating support.    The reason is a "presumption" of less need for support from the paying ex-spouse.

6)     The paying party retires.   Once a payor turns 65 years of age, the court will not impute income from employment to that party if they chose to retire.     However, if the paying party continues to work after age 65, or if that party has additional passive income, the court may consider that income in a future support order.

These are just some of the factors involved in changes in support.    Consult an experiencedTorrance Divorce Attorney or Mediator such as Kevin J. Kensik.

Support Modification - Post Judgment

Many people are unaware that support can be modified after their divorce is completed. The support can be modified down or up, depending on a number of factors. The factors the court can consider usually must create a "Change in Circumstances" for the court to modify the amount.

Some factors or reasons for modifying support are:

1) Spousal Support (Alimony) terminates but Child Support continues. Many times the reduction in Spousal Support will cause the "Guideline" Child Support amount to increase. The courts have ruled that termination of spousal support is a "Change in Circumstances.";

2) The Payor’s income increases or decreases. The support that is set by the court or agreed by the parties is based primarily on both parties’ gross incomes. If the payor’s income decreases, a support reduction may be in order. The same is true that an income increase could create a support increase. Also, regarding income reduction by the payor, the court will inquire as to the reasons for the loss in income to determine if it is legitimate and reasonable;

3) The Payee’s (supported spouse) income increases or decreases; The same is true of changing income of the Payee (supported spouse) as is of the Payor. If the payee begins making much more income, the court assumes a "reduced need for support.";

4) The Payor retires. The payor is allowed to retire at or over age 65 and the court will not "impute" income even if the party is capable of working and earning. However, workers retiring before age 65 may have income "imputed" to them for purposes of calculating support, even if they are eligible to retire before age 65;

5) The supported party remarries or cohabitates; Once a supported party remarries, there is a presumption the new spouse will support that person, and support ends. If a supported party is found to be "cohabitating" (defined as living with a person of the opposite sex, generally, and having a romantic relationship), the cohabitation may not "terminate" the spousal support, but it creates a "presumption" of reduced need.

There are numerous other reasons why support might be modified, including hardships, unforeseen circumstances, expenses and medical reasons. Be sure to contact Kevin J. Kensik, Attorney to discuss the unique facts of your case.

The Importance of Date of Separation in a California Divorce

What is "Date of Separation" and what does it mean?

Most people often confuse "Date of Separation" with a "Judgment of Separation" and there is even more confusion with the term "Living Separate and Apart."    What does all of this mean?


JUDGMENT OF SEPARATION
After parties file a Petition with the court, whether for divorce, annulment, or separation, they may obtain a Judgment of Separation.     This means that the parties have separated, and have made some type of agreement regarding finances, custody or support and property division.      However, they are technically still married.      To obtain a judgment of separation, both parties must agree to the judgment of separation.   If one party does not, the Court must either terminate the marriage through divorce, or find a "nullity" of marriage. (annulment)

What are the benefits of a Judgment of Separation?
One benefit is that this usually resolves all of the financial issues in the case.     However, people previously got judgments of separation because many employers kept medical and health coverage benefits in place.     This is generally no longer the case.      Make sure to consult Attorney Kevin J. Kensik to determine your rights.

DATE OF SEPARATION
The Date of Separation is the date parties typically decide to live "Separate and Apart" and also decide to end the marriage.     This date can be critical because it may determine some of the following issues:
                                          -    Duration of Alimony (Spousal Support)
                                          -    Amount of Retirement Benefits
                                          -    Amount of other benefits, such as employment bonuses,
                                                awards, business values and other items.

Previously for about the last 10 years, one of the parties had to move out of the residence.
(Marriage of Norviel (2002) 102 Cal.App.4th, 1152) and Family Code 771.)

This is no longer the case.    A recent case, however, the Norviel standard was considered "unduly rigid" and in fact severely modified.    (Irmo Davis (2013)

How can you know what dates are critical?   Contact Palos Verdes Divorce Attorney Kevin J. Kensik
at 310-891-2300 or 310-704-0879.

The Difference between Domestic Partnership and Same-Sex Marriage in California

Many people are confused about the differences between and domestic partnership and or a same-sex marriage in California.    A brief review is in order:

DOMESTIC PARTNERSHIPS

Domestic Partnership licenses were first issued in California in 2001 as a way of having the State recognize marriages between same-sex couples and also non-same-sex couples.     However, under Federal Law, this was not recognized as a marriage.   The laws were modified in 2003, 2005 and again in 2012.     The most recent changes prevent non-same-sex couples under age 62 from obtaining a Domestic Partnership license.     The reason people, particularly those of 62 years of age may want to obtain a Domestic Partnership license instead of marriage is to preserve social security and retirement benefits that were earned before marriage.       Parties to a Domestic Partnership license do not enjoy the same marriage benefits under Federal Law as either a traditional marriage or same-sex marriage.

SAME-SEX MARRIAGES

Same sex marriages began in California in 2004 when the Mayor of San Francisco began issuing marriage licenses to same-sex applicants in 2004.     However, those orders were later considered "void" by the California Supreme Court.   In June 2008, the State of California began issuing marriage licenses until late 2008 when the licenses were halted due to the filing of a Federal Lawsuit challenging the State's authority to issue licenses under "Proposition 8."   After being heard in District, Appellate and the U.S. Supreme Court, marriage licenses again resumed being issued in June 2013.

WHAT DOES THIS MEAN FOR YOU?

Both Domestic Partnerships and Same-Sex Marriages or terminated by a similar process to a Divorce.    Contact Attorney Kevin J. Kensik to find out about your rights.

Law Offices of Kevin J. Kensik

Located in Palos Verdes, the Law Offices of Kevin J. Kensik helps clients throughout the South Bay resolve their family law disputes.

Attorney Kevin Kensik is a member of the Los Angeles County Bar, the Beverly Hills Bar Association and the South Bay Bar Association. Mr. Kensik is also a member of the Tax Court and is licensed in federal court in the Central District of California. For more information about the Law Offices of Kevin J. Kensik, please refer to my biography below.

• Kevin J. Kensik