Channe has been excellent in working with me to get immediate temporary spousal and child support as we get deeper into the complexities of my case.
E.S. (Yelp)

Immediate Answers for the Non-Primary Wage Earner Spouse

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In my experience, one of the greatest stresses of a looming divorce is coming up with the money necessary to retain an attorney to fight for you and protect your rights. Because let’s face it, most divorces are acrimonious and most couples face a complicated or acrimonious division of the community estate and child custody issues. For many family law litigants, this is especially daunting where you are the non-primary wage earner (or “NPWE”) spouse. Combine the stresses of money with the prospect of losing time with your children or influence in your child’s life, and you may feel pushed to your breaking point. A client under these kinds of circumstances arrives in my office needing immediate answers and assurances. Often the main questions out of the gate are:

  • Can my spouse freeze me out of the bank account / credit cards?
  • Can my spouse be forced to help pay for my attorney fees?
  • Will my spouse have to pay me spousal support? And..
  • Will my spouse have to pay me child support?

Invariably these latter questions are followed by:

  • How much?

         and

  • How soon? - Because I need help now.

All of these questions make sense and are perfectly normal within the context of the NPWE spouse predicament: the imminent need to provide for one’s livelihood and those of your child(s) as a single-parent. A NPWE spouse may find themselves without access to community funds outside those provided by the primary wage earner (or “PWE”), or may have been wrongly shut out of community accounts and credit cards by an angry or controlling spouse.

As I’ve stated elsewhere in my website, California statute and case law is equipped to address and resolve many of these questions, but executing the “how” or “how soon” issue, is where a good family law attorney comes in.

At my initial consultation and case review, I will explain how the law and the particular facts of your case will likely play out (I cannot guarantee the future), and describe the process by which family law litigants can request attorney fees from the PWE spouse, obtain monthly child and spousal support payments, and give a ‘ball park’ estimate on how soon it will likely happen, if at all. I will break-down the steps I take and events I put in motion, so that you know walking out of my office, things are being done immediately to ensure and secure your livelihood and success, both during and after the divorce process.

Obtaining Attorney Fees from the Primary Wage-Earner Spouse.

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California law states very GENERALLY that any request by a party in a pending divorce that the other party pay some or all of their attorney fees is determined by looking at both the “needs” of the asking party and the “ability to pay” of the opposing party.

A “need based” fee award and the circumstances for which it is ordered is based on Family Code Section 2030, which expresses in general terms the courts policy of ensuring each party has equal access to representation, both early in the divorce proceedings and throughout the divorce process. The goal of the courts in applying section 2030 is the attainment of ‘equality’ between the parties. In achieving equality, the court looks at the income and assets of both parties and will, in essence, redistribute assets from one party to the other.  The overriding goal is that both parties are able to pay whatever amount is “reasonably necessary for attorney fees and costs,” both in initiating divorce proceedings, but also in maintaining the action through to it’s conclusion.

What Does Family Code Section 2030 Mean for You?

Section 2030 means you will not be put at a disadvantage simply because you stayed home to raise the kids and your spouse went to work. Section 2030 means that you will not be put at a disadvantage simply because your spouse has access to significant separate property wealth, and yours is tied up in community assets. Section 2030 means that you will not be disadvantaged simply because you gave up on your professional aspirations when your spouse asked for your help in accomplishing his/hers, all while promising to take care of you forever...

In short, if you are the spouse with a lesser income (or no income), and your spouse makes all the money or has access to significant assets, then section 2030 comes in to ensure that your “financial needs” are considered and weighed against the ability of your spouse to pay for the legal representation of both parties. If the court finds that there is both a financial inequality between the parties, and that the financially superior party is able to contribute towards attorney fees of both parties, the court will award fees.

The request (to the court) itself is called a, “Request for Orders Re: Attorney Fees and Costs”, and they are not as easy to obtain as some attorney’s make it sound. Succeeding requires a solid understanding of the law and the specific facts of the case, the use of court-mandated forms, the provision of supporting evidence, and a comprehensive declaration of both the NPWE spouse and attorney, setting forth the facts and circumstances justifying the award. At my practice, we have experience and success both bringing and defending such motions.

How much will the court award?

Though “how much” in fees is actually awarded is never certain until the day of hearing, the court’s focus is always on what is “just and reasonable” under the circumstances; which itself is considered within the context of certain predetermined factors. Generally, however, the court wants to enable that the award is enough to allow the disparate party the chance to present their case adequately in a court of law. If the court does not find that there is either an inequality in income or inequality in each party’s ability to pay, then you will not succeed in obtaining a “need based” fee award.

When can I go before the court and ask for a contribution towards my attorney fees?

A party can bring an RFO for a fee request after the filing of a Petition for Dissolution of Marriage (or nullity or legal separation) and the filing of a timely response. The court must rule on a request for attorney fee motion within 15 days after the hearing, but in my experience, awards are often made at the time of hearing, and if there is an order to pay, the payment typically must be made anywhere between 10 - 30 days.

Can I get reimbursed for paying my attorney’s retainer?

In short, yes! The reality is that there are very few family law attorneys who will take on a family law litigant without payment of a retainer fee first, whatever the specific amount. In light of this, many NPWE party’s often borrow money from friends or family or incur credit card debt in order to pay the requisite retainer. In bringing your initial RFO Re: Attorney Fees, this is the time you present to the court your specific needs, the disparity in income between the spouses, your inability to pay, and evidence of incurring debt to cover your retainer. In granting your request, the court can award attorney fees and costs to cover, “legal services rendered or costs incurred (both) before or after the commencement of the proceeding;” this includes retainers which are often paid before a dissolution action is brought.

Obtaining Spousal and Child Support from the Primary Wage-Earner Spouse

The first thing to remember in discussing California law and the awarding of either spousal or child support, is that it is NOT gender biased.  [If the law is applied in a biased fashion, that's another thing all together.] The basic rule of thumb is that the larger wage earner, regardless of sex, will probably have to pay spousal support to the lesser wage earner if there is at least a 25% difference in income. How much in support is ordered, depends upon several factors discussed elsewhere on this site, but for the most part it depends on the degree of disparity in income and the ‘standard of living’ attained during the marriage.

Spousal support awards ordered during the pendency of a divorce proceedings will typically be the result of a guideline support calculation. I, along with many other family law attorneys, typically use a software program called DissoMaster™ to run “the numbers” on what would likely be awarded in your particular circumstances. After final judgment, however, permanent (or long-term) spousal support must be determined and awarded based upon consideration and weighing of those factors set forth in Family Code § 4320-4325.

What is Dissomaster™?

The DissoMaster™ program is the Holy Grail of support calculations. It is used by almost all family law professionals to determine guideline child and spousal support payments in the State of California. The DissoMaster™ program is one of the few programs certified by the California Judicial Council for use in making support calculations in California and was designed by attorneys to follow the guidelines set out in the California Family Law Code. In short, at almost every hearing for pendent lite child and spousal support, the Court will order support based upon the numbers reflected in the DissoMaster™ report. During your initial consultation, I will run provisional reports to give you an idea of the amount of support, whether it’s child or spousal, that may be ordered by the court at such a hearing.

But no two DissoMaster™ reports are the same! Often times there will be competing DissoMaster™ reports submitted by either party (by their attorney) at the time of hearing. It is very common that before such hearings, lawyers will argue with each other over who’s report is the most accurate. The opposing attorney will input numbers which best reflect his or her client and provide the most favorable outcome, and these numbers will vary from my report. But the smartest attorney is the one who inputs numbers that can actually be supported with extraneous facts. Courts do not appreciate highly skewed numbers and look to those reports which are supported by reliable data.

The guideline numbers reflected in a completed report are based on a multitude of factors, such as the number of children, the timeshare percentage each parent spends with the children, the number of exemptions each parent claims, the income of each parent, health insurance deductions for each parent, mandatory retirement deductions, itemized deductions, including but not limited to mortgage interest deductions and property tax, work related child care costs, certain specific hardship deductions, as well as other less significant factors.

As an attorney, I focus on reliable data and evidence when preparing and presenting a proposed guideline DissoMaster™ report. This is where having a good family law attorney makes all the difference.

How much will the court award?

As stated above, the amount of child and spousal support will depend on the myriad of factors and numbers inputted into the Dissomaster™ program; at least during those proceedings which precede final judgment. Since everybody’s situation is different, I could only provide a rough idea at the time of your consultation and more accurate numbers after a comprehensive case review.

However, a word of warning, nearly every person that has to pay child or spousal support, typically says "That is too much, I can't afford to pay that", and almost every receiving party says, "That's not enough, I can't live on that." This invariably leads to unnecessary conflict between exasperated clients and angry opposing partys.

What is true is that during hearings for temporary orders, the court will use the Dissomaster™ report to order both child and spousal support. However, at the time of final judgment, this will only be the case for child support (there are exceptions to this, but these are very rare), but is required to order spousal support based upon those considerations set forth in Family Code § 4320-4325. For a more in depth discussion about these factors, please reference my section on “Spousal Support” in my services menu.

How soon will the court order support payments?

Not to be too technical here, but it should be noted that in order to get spousal support you would have had to be married (or in a domestic partnership relationship). In order to get child support, no marriage need ever to have occurred. However in order to get either, you must have an open case with the Court. Assuming you are married to the other parent, an “open case” would mean filing for divorce or legal separation. If you do not want to file for divorce or legal separation, you may file a Petition for Custody and Support of Minor Children. If you are NOT MARRIED to the other parent, and you are only seeking child support, then you may file a parentage action. This means you are asking the court to legally establish who the parents are. You are also allowed to ask for child support, custody and visitation orders at the same time.

When you file your divorce, legal separation or parentage case, you may also file paperwork called a Request for Order. A Request for Order (or RFO) is your request to the court to make orders for child support or other issues, and a court order for the other party in your case to come to court. A Request for Order(s) is the mechanism used to request temporary (pendent lite) child support orders when you first file your parentage, divorce, or legal separation case, ask for child support orders in an existing case, or ask for a change to your current child support orders.

How long will my support last?

This is not an easy question to answer because, let’s face it, the facts and circumstances which may give rise to a child or spousal support order at the time of divorce may not be the same facts and circumstances 5 years later. Things change. Period. However, and only GENERALLY speaking, in most every case, child support lasts as long as long as there are ‘reasons’ to support the payment of money from one parent to another, and if so, then until the child reaches 18, graduates from high school, dies, or is emancipated; whichever happens last. This means, that if you receive child support and your child turns 18 in September of his/her senior year in high school, child support would typically not cease until he/she graduates from high school in May or June the following year.

In regards to a final spousal support order, the rule of thumb is that support awarded at the end of the case is either one-half the duration of the marriage (if the marriage is less than 10 years), or potentially for the life of the spouse paying support or remarriage of the spouse receiving it (if the marriage is 10 years or longer). There are a number of considerations and exceptions to the above which I have detailed at length in my Services menu on “Spousal Support.”

Spousal support, like child support, can be modified when there is a change of circumstances justifying a different award or termination of payments.

For questions concerning attorney fees in divorce, spousal support and child support, please call the Law Office of Channe G. Coles for a free consultation today.

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