Law Offices of Donald Glass
951-326-8005
$695 Flat Legal Fee Uncontested Divorce Attorney
www.AttorneyPreparedDivorceForms.com
www.CaliforniaOnlineDivorceAttorney.com
43537 Ridge Park Dr, Temecula, CA 92590
Can I get Child Support and Spousal Support in a True Default Divorce in California ?
You have a “true default divorce” if the Respondent failed to file a response to the petition for divorce.
This means that it has been more than 30 days since the petitioner served the petition and summons and the Respondent did not file a response and there is no written settlement agreement.
In this scenario, the question is will you get everything you wanted such as child support and spousal support? The answer is Not Necessarily!
Child Custody Laws:
The law requires that the judge to decide based on the child’s best interest. The court may not order what you want if the court believes it is not in the child’s best interest. The purpose of the California best interest standard is to give the court broad discretion to order a custody and visitation plan that is consistent with the child’s health, safety, welfare and education. The court discretion when assessing the child’s best interest is also what makes child custody decisions difficult to successfully appeal. When an appellate court takes a look at a judge’s decision on what facts he or she gave less or more consideration, they generally have to find (with some exceptions of course) that the judge abused his or her discretion when evaluating and weighing the facts.
Sole physical custody gives a parent the right to be the primary custodial and caretaker role. Sole physical custody orders do not necessarily take away all parenting time from the noncustodial parent. It is common for a sole physical custody order to be granted to one parent while visitation (parenting time) is ordered for the other.
Sole legal custody orders give one parent the exclusive right to make decisions concerning a child’s health, education and welfare. That doesn’t mean the parent who obtained sole legal custody gets to make all of the decisions at all times. That is because the parent who has visitation (but not custody) does still have supervisory responsibilities while the child is in his or her control. Sole legal custody orders are rare and not favored by our laws unless the noncustodial parent has committed certain acts of misconduct or has otherwise abandoned the child to such an extent that he or she should not be involved in important decision-making concerning the child.
Child Support Laws:
The court is obligated to issue an order based on guideline child support unless there is lawful ground for deviation from the guidelines. Basically, the guideline child support is what the judge’s computer program tells the judge the amount for support. In most cases, the judge follows the guidelines unless there are proper legal reasons to deviate from the guidelines. California Courts cannot simply fail to order the guideline child support amount for reasons not permitted by law. That is because the guideline child support number is presumptively deemed to be correct.
In some cases, the court may deviate from the guidelines if the presumption of correctness is rebutted. But the court must state how it deviated from the child support guideline. Here are some examples for deviation:
1- The parties stipulated to a different amount of child support.
2- The party that is paying has an extraordinarily high income and the amount determined under the formula would exceed the needs of the child.
3- The custodial parent is not contributing enough resources in proportion to custodial time.
California Spousal Support:
The court may request to terminate spousal support. But the court may decide not to terminate spousal support even if you ask for it, especially in a long term marriage. These are just a few of the many examples of how the court may not give you what you want even if the respondent has failed to participate and whose default has been taken.
Temporary:
Before there is a final judgment, California alimony laws give the court the power to order temporary alimony based on a spouse’s need and the other spouse’s ability to pay. Temporary spousal support is generally based on the same computer program used to calculate child support. California alimony laws state the fundamental purpose of temporary alimony is to maintain the status quo. The court will typically look at the net disposable income of each spouse and how much “waste” there is within the monthly expenses that the spouses pay or claim they need to pay. The court has discretion to depart from the program in situations where a requesting spouse’s need is higher or the payor spouse’s ability to pay is materially less or more than what the computer program calculates.
In short-term marriages, the termination of alimony is simple because the date is generally one half the duration of the marriage. The shorter the marriage, the more likely the one half duration will act as a termination.
Permanent:
The biggest difference between an alimony order at the judgment phase versus a temporary one is that the court will not use and cannot use the computer program to determine the amount. Alimony orders at the time of judgment must be based on Family Code 4320. Family Code 4320 is the code section that goes through the determination of the standard living which was established during the marriage.
The shorter the marriage, the shorter the alimony in California and the shorter amount of time that a spouse will have to become self-supporting. The longer the marriage and the longer that a spouse has been out of the workforce, the longer the alimony and the more leniency the family court will give regarding the inability to get back into the workforce. Family Code 4320 states how the Family Court may consider the 14 factors in determining the final alimony amount.
However, husband and wife are free to negotiate in a divorce settlement many variations of alimony terms and conditions. These include but are not limited to (a) the indefinite retention of the court’s power to make orders just as the code says, (b) termination of alimony on a set date which may or may not include, especially in a long-term marriage, (c) termination of the court’s power to ever award alimony beyond that date, (d) non-modifiable alimony in various forms including non-modifiability for a certain period, the entire time as well as a step down or step up of alimony over time. In long-term marriages, the court will generally not terminate its power to award alimony.
Just because a marriage is of a long duration and even if it is much longer than the 10 year mark does not mean the court loses all power to terminate alimony.
The court retains its power and has the ability to terminate alimony in longer marriages if there is persuasive evidence that the supported spouse can sustain the marital lifestyle and standard living on his or her own. Another way to understand this concept is that the court must clearly find that the supported spouse will be able to adequately meet his or her financial needs without the necessity of additional alimony from the other spouse. Generally, a showing has to be made that the supported spouse has gained income, typically through employment, that allows him or her to provide for his or her needs. The nature and extent of the employment is a factor in the court’s consideration and is not limited to just the income.
Nothing in this page should be interpreted as legal advice nor is it intended to address your specific factual situation. Advice about California alimony laws and procedure should only come from direct communication with an attorney and after the attorney has analyzed your facts and issues.
Law Offices of Donald Glass
951-326-8005
$695 Flat Legal Fee Uncontested Divorce Attorney
www.AttorneyPreparedDivorceForms.com
www.CaliforniaOnlineDivorceAttorney.com
43537 Ridge Park Dr, Temecula, CA 92590
951-326-8005