California - Claiming a Hardship Deduction for Child Support

California recognizes that life happens and sometimes the regular guidelines for determining child support need to be modified to take into consideration a party’s extraordinary financial hardship caused by (1) extraordinary health expenses, (2) uninsured catastrophic losses, and (3) expenses related to caring for other natural or adopted children. 

Section 4070

The statutory language is found in Family Code section 4070, which states that if a parent ‘is experiencing extreme financial hardship due to justifiable expenses’ resulting from specified circumstances, the court may modify child support by allowing a deduction from the income of the party experiencing the hardship. (See also, § 4059, subd. (g).) 

Section 4071

Circumstances evidencing hardship are set out in section 4071.  Section 4071 provides in relevant part: “(a) Circumstances evidencing hardship include the following: [¶] (1) Extraordinary health expenses for which the parent is financially responsible, and uninsured catastrophic losses. [¶] (2) The minimum basic living expenses of either parent’s natural or adopted children for whom the parent has the obligation to support from other marriages or relationships who reside with the parent. 

Section 4071, subdivision (a), provides, “The court, on its own motion or on the request of a party, may allow these income deductions as necessary to accommodate these expenses
after making the deductions allowable under paragraph (1).

But Section 4071, subdivision (b), provides, “The maximum hardship deduction under paragraph (2) of subdivision (a) for each child who resides with the parent may be equal to, but shall not exceed, the support allocated each child subject to the order. For purposes of calculating this deduction, the amount of support per child established by the statewide uniform guideline shall be the total amount ordered divided by the number of children and not the amount established under paragraph (8) of subdivision (b) of Section 4055. 

Section 4072 

Hardship deductions are not automatic, but rather, they are within the discretion of the court. Section  4072.  (a), states, “ If a deduction for hardship expenses is allowed, the court shall do both of the following: 
   (1) State the reasons supporting the deduction in writing or on
the record.
   (2) Document the amount of the deduction and the underlying facts
and circumstances.
   (b) Whenever possible, the court shall specify the duration of the
deduction.”

Section 4073

Furthermore, Section 4073 states, “ The court shall be guided by the goals set forth in this
article when considering whether or not to allow a financial hardship deduction, and, if allowed, when determining the amount of the deduction. “

Sections 4074 and 4075

These hardship deductions shall apply to “Family Support” orders  [§ 4074] but not to Spousal Support orders  [§ 4075].  

What does all this mean?  

If a party seeks an extreme hardship deduction, this must be specifically requested or the court must recognize the need for this on its own motion. The party establishes the need for a hardship deduction by filing a motion to modify support and filing an Income and Expense declaration with the court, pointing out to the court how out-of-pocket expenses have increased significantly due to the financial hardship the party is experiencing. Thus, for wealthy individuals, it is unlikely that a court would find an extreme financial hardship but for Middle Class and lower wage earners, careful documentation may convince the court that an extreme financial hardship should be considered.  

But, be aware that the hardship deduction “is not a ‘foregone conclusion’ . . but depends on “the family’s income, as well as purported expenses,” bearing in mind that one’s “responsibility as a parent ‘[is] not to seek to provide less for some of his children because he had others, but to provide adequately for all of them.’” (In re Marriage of Paulin (1996) 46 Cal. App. 4th 1378, 1382.)   

Obtaining a financial hardship deduction can become complicated and may be an area where an experienced Family Law attorney can help, either by full representation or by having the lawyer prepare the documents for you or appear with you in court for one hearing only.    

Best wishes. 

copyright © 2016 Christine Esser

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney-client relationship is only established when a written retainer has been signed.

Disclosure: If you click on the Amazon link below, and buy today, we may receive a small commission that will not increase your cost of the item purchased. We have not received anything from the author or publisher for recommending these books. Thank you.

What do the terms “joint custody” and “sole legal custody” mean in California?

Here are the legal terms you need to understand if you are involved in a custody battle for your children:

 *** “‘Sole legal custody’ means that one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.” (Fam. Code, § 3006.)

 ***“‘Joint legal custody’ means that both parents shall share the right and the responsibility to make” those decisions. (Fam. Code, § 3003.)   But joint legal custody requires the parents’ willingness to cooperate in making medical, educational, and psychological decisions.  The Court of Appeal explains that [in most circumstances, children’s best interests are served by joint legal custody, but where there is acrimony “the reality of their parents’ conflicts unavoidably hampers the realization of that goal." (In re Marriage of McLoren (1988) 202 Cal.App.3d 108, 115-116.)  

California courts look at these factors to determine the “best interests of the child”: 

(1) The age of the child. [When a child is 14 or older the court must allow the child to testify in court if the child chooses to testify but if the child is younger than 14, the court has discretion to allow the child to testify.]

 (2) The relationship of the child's parents and any other persons who may significantly affect the child's welfare. 

(3) The preference of the child, if old enough to express a meaningful preference; 

(4) The duration and adequacy of the child's current living arrangements and the desirability of maintaining continuity; 

(5) The stability of any proposed living arrangements for the child; 

(6) The motivation of the parties involved and their capacities to give the child love, affection and guidance. 

(7) The child's adjustment to the child's present home, school and community. 

(8) The capacity of each parent to allow and encourage frequent and continuing contact between the child and the other parent, including physical stress. 

(9) The capacity of each parent to cooperate in childcare. 

(10) Methods for assisting parental cooperation and resolving disputes and each parent's willingness to use these methods;

 (11) The effect on the child if one parent has sole authority over the child's upbringing; 

(12) History of Domestic Violence; and

(13) All other factors having reasonable bearing on the physical and psychological well-being of the child.

If child custody becomes a battle, it is in your best interests to retain an experienced Family Law attorney. If you cannot afford to retain a Family Law lawyer, there are services that provide limited scope representation and Family Law attorneys who will provide limited scope representation, such as preparing your court papers or appearing in court for a single hearing. Also, you can go to your local law library and seek assistance from the law librarians who can show you the forms you need for your case. Furthermore, most courts have Family Law Facilitators who can help you. 

Additionally, you may find some of the books below related to child custody helpful. Best wishes. 

Copyright @ 2016 Christine Esser 

If you click on any of the books below, you will be directed to the Amazon website. We may receive a small commission if you make a purchase that will not increase the price you pay.  We have not received anything from the author or publisher of these books for listing them here.

What Can You Do If Your Ex Repeatedly Files Motions to Modify Support Orders to Harass You?

If your ex continuously files frivolous motions to modify child support or spousal support orders you can file a motion that requests monetary sanctions.  

Sanctions under Code of Civil Procedure section 128.7 (section 128.7) may be appropriate if you can establish that the most recent motion has no merit and it was filed for an improper purpose. Section 128.7 states that attorneys and parties certify that every pleading and motion “is not being presented primarily for an improper purpose, such as to harass,” and that the allegations in the motion “have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.” (§ 128.7, subd. (b)(1) & (3).) The primary purpose of section 128.7 is to deter filing abuses. (Musaelian v. Adams (2009) 45 Cal.4th 512, 519.) Essentially, “the statute imposes a continuing obligation on a party and counsel to insure that claims are factually and legally sound.” (Rubenstein v. Doe No. 1 (2016) 245 Cal.App.4th 1037, 1052.)

Section 128.7 “requires only that the conduct be objectively unreasonable.” (In re
Marriage of Reese & Guy (1999) 73 Cal.App.4th 1214, 1221.) Sanctions are warranted
when a pleading or motion is filed “not to assert any arguably legitimate legal right but to
frustrate and impede” the other party. (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1422 (Hopkins.)

A support order is modifiable upon a material change of circumstances since the last order. But where there is no substantial evidence of a material change of circumstances, an order modifying a support order will be overturned for abuse of discretion. (See, In re Marriage of West (2007) 152 Cal.App.4th 240, 246.) In other words, a material change in circumstances is a proper purpose for filing a request for modification of support obligations, but where there is no material change in circumstances, sanctions may be appropriate if the motion was filed for an improper purpose, especially if there has been a succession of motions based upon the same facts that have been repeatedly rejected by the court.   

If you believe that a request for sanctions is appropriate, the motion requesting sanctions must be filed separately from other motions or requests and it must describe the specific conduct alleged to violate subdivision (b).  In other words, it must point out why the prior motion requesting a modification was not based on any new facts or changed material circumstance from the previous motion that had been rejected.  

But if the other party withdraws the offending motion or appropriately corrects it, sanctions are not warranted.  

If the court finds that sanctions are appropriate under section 128.7, the court may order your ex to pay your reasonable expenses, such as filing fees, and attorney's fees incurred in presenting or opposing the motion. Even if you are not represented by an attorney in court, if you have been hiring an attorney to prepare your court papers, you can request to be reimbursed.  Absent exceptional circumstances, a law firm is held jointly responsible for violations committed by its partners, associates, and employees under section 128.7.

This is an area where an experienced Family Law attorney can be of great assistance to you.  Good luck. 

copyright © 2016 Christine Esser

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney-client relationship is only established when a written retainer has been signed.

When Earning Capacity Changes a Court May Grant a Modification of Spousal Support in California

"Alimony is like buying hay for a dead horse."-  Groucho Marx 

Life happens. Circumstances change. Courts are aware of this and the law contemplates that even after an order for spousal support is made if the circumstances change sufficiently, the court may need to modify or terminate the order. This article addresses the law on what constitutes a change in “earning capacity” when a party seeks a modification of a spousal support order.

Family Code section 3651, subdivision (a), provides, in relevant part, that “a support order may be modified or terminated at any time as the court determines to be necessary.” It is well established that “ ‘[m]odification of spousal support, even if the prior amount is established by agreement, requires a material change of circumstances since the last order. [Citations.]’ [Citation.]” (In re Marriage of Khera and Sameer (2012) 206 Cal.App.4th 1467, 1475 (Khera).) Therefore, “ ‘[a] motion for modification of spousal support may only be granted if there has been a material change of circumstances since the last order. [Citation.] Otherwise, dissolution cases would have no finality and unhappy former spouses could bring repeated actions for modification with no burden of showing a justification to change the order. Litigants “ ‘are entitled to attempt, with some degree of certainty, to reorder their finances and life style [sic] in reliance upon the finality of the decree.’ ” [Citation.] 

Absent a change of circumstances, a motion for modification is nothing more than an impermissible collateral attack on a prior final order. [Citation.]’ [Citation.]” (Khera, supra, 206 Cal.App.4th at p. 1479.) 

A material change of circumstances “ means a reduction or increase in the supporting spouse’s ability to pay and/or an increase or decrease in the supported spouse’s needs. It includes all factors affecting need and ability to pay.” (In re Marriage of West (2007) 152 Cal.App.4th 240, 246.) The moving party has the burden of showing a material change of circumstances since the last order was made. 

“[F]or purposes of determining support, ‘earning capacity’ represents the income the spouse is reasonably capable of earning based upon the spouse’s age, health, education, marketable skills, employment history, and the availability of employment opportunities.” (In re Marriage of Simpson (1992) 4 Cal.4th 225, 234.) 

Family Code section 4320 states in pertinent part: "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.” 

Many spousal support orders contain a Gavron warning. The court in In re Marriage of Gavron (1988) 203 Cal.App.3d 705 (Gavron) states: “ ‘[T]he Legislature intended that all supported spouses who were able to do so should seek employment. It also appears the Legislature expected that courts would issue orders encouraging these spouses to seek employment and to work toward becoming self supporting.’ [Citations.]” (Id. at p. 711.) 

Here are some examples from previous cases regarding how courts have resolved whether the moving party met the burden of establishing that earning capacity has changed to modify the spousal support order: 

(1) . Passage of time when this is not addressed in the settlement agreement. “Although the passage of time may be related to a change in circumstances, it is not alone a sufficient basis for modification. [Citation.]”(In re Marriage of Gavron (1988) 203 Cal.App.3d 709, 710.) (See, e.g., In re Marriage of Jones (1990) 222 Cal.App.3d 505, 509 [marital settlement agreement provided for specific support payments for identified time periods].) 

(2)  The moving party must support the request for modification with evidence, not speculation. An allegation of changed earning capacity must be supported by evidence, not speculation. “ ‘[S]peculation or conjecture alone is not substantial evidence.’ [Citation.]” (In re Marriage of Burwell (2013) 221 Cal.App.4th 1, 25, fn. 21.) 

(3)  When the court orders a spouse to be retrained and the party fails to make a reasonable effort to get training this may be sufficient to establish a changed circumstance. In In re Marriage of Shaughnessy (2006) 139 Cal.App. 4th 1225, the trial court issued a spousal support order that specified that the wife “needs to be retrained and obtain computer skills,” based on the court’s findings that she did not possess marketable skills and had been employed as a florist during the marriage. (Id. at p. 1232.) The trial court granted the husband’s motion for a downward modification of spousal support because the evidence showed a change of circumstances justifying modification. Specifically, the court found that the wife “had done little, if anything, to obtain retraining to increase her income, and that she had not otherwise been diligent in attempting to become self-supporting.” (Id. at p. 1240.)

(4)  Evidence by a vocational expert may provide sufficient evidence of changed earning capacity.

 A vocational expert’s evaluation of the party’s earning capacity can provide sufficient evidence of an earning capacity change. (See, e.g., In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 212 [vocational examination report].) These are only a few examples. But I hope these have helped you to t;hink about the evidence you will need to provide the court to establish a change in “earning capacity.” 

In most cases, discovery will need to be conducted and in many cases a vocational expert may be needed to support an order for modification of spousal support or to contest the opposing party’s request for such an order. This is an area where an experienced Family Law attorney can be of great assistance to you. Good luck.

copyright © 2016 Christine Esser

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney-client relationship is only established when a written retainer has been signed.

Disclosure: If you click on the Amazon link below, and buy today, we may receive a small commission of about 3 percent that will not increase your cost of the item purchased.  This will be used to keep more Family Law Help CA coming your way. Thank you.