Will support be reduced when my ex retires at age 65?

Experienced Bay Area Family Law clients will tell their clients that retirement constitutes a change in circumstances. 

A supporting spouse's attainment of retirement age typically constitutes a material change of circumstances for purposes of a motion to modify a spousal support order, depending on the circumstances of a given case..

It has been found that there is no material change in circumstances occurred when the obligee became old enough to access a retirement fund without penalty, where the accessibility and possible increase in value of the obligee's share of the retirement accounts were part of the parties' expressed reasonable expectations in entering the stipulated judgment, the retirement accounts were divided equally between obligor and obligee, and by the time of the hearing the obligor was also old enough to access his account without penalty; since the marital settlement agreement, the obligee had become unable to work due to illness, and the obligor's income had increased. In re Marriage of Dietz, 176 Cal. App. 4th 387, 97 Cal. Rptr. 3d 616 (4th Dist. 2009), as modified, (Sept. 2, 2009)

Can you impute income from assets?

Maybe. The court's ability to impute income from assets derives from section 4058, which defines "annual gross income" as "income from whatever source derived," and states that "[t]he court may, in its discretion, consider the earning capacity of a parent in lieu of the parent's income . . . ." (Id. at subds. (a) & (b).) The provision has been consistently interpreted to include the supporting party's ability to earn income from non-income producing or underperforming assets. 

You can contact me at Amanda@gordonfamilylaw.com for more information.



What is a Gavron warning?

If you are paying spousal support you may want to ask the Court to make a Gavron warning. 

A Gavron warning is when making a spousal support order, the court may advise the supported party that he or she should make reasonable efforts to assist in providing for his or her support needs, taking into account the particular circumstances considered by the court under Fam C §4320, unless, in the case of a marriage of long duration as provided for in Fam C §4336 the court decides this warning is inadvisable. Fam C §4330(b). The warning may be provided before trial as part of a temporary support order, or by stipulation, or possibly by notice from the supporting party. If the court issues the order, it should be reflected in the order or Judgment.  

You can contact me at Amanda@gordonfamilylaw.com for more information.

Is rental income included in a support calculation?

Rental income where the income only covers the property expenses generally would not be included in a support calculation.

This is because the “cash flow” is the amount received in rent less what is being paid out, which includes mortgage principal and interest, taxes, insurance, and repairs among other real costs that equals the net income for support purposes before tax.  Only the net income is considered as part of income.  

What we recommend is to go to the rental property schedule of the tax return and add back the depreciation and subtract principal paid down not he mortgaged since only the interest part of the mortgage payment is an allowable deduction for the IRS.  Only if a party had remaining income AFTER paying the mortgage and such, that would be included in the support calculation.

Contact amanda@gordonfamilylaw.com to speak about your specific child support issues.

Does Cohabitation constitute a change of circumstances to modify support?

Yes. A supported spouse's cohabitation with a person of the opposite sex gives rise to a rebuttable presumption of proof of decreased need for spousal support.

Under the family code,"Cohabitation" means more than a roommate relationship; the statute contemplates a personal, romantic relationship. 

That being said, even a simple boarding arrangement under which expenses are shared or rent received may reduce the need for support and thereby constitute changed circumstances. Cohabitation may reduce the need for spousal support because sharing a household reduces the expenses of the supported spouse. Additionally, the cohabitant's income may be available to the supported spouse. 

Courts have found that an earlier determination that a spouse was merely a roommate does not preclude a court from later recognizing a change in the relationship and determining that the roommates are cohabiting. The change in the relationship constitutes a change of circumstances warranting a review of the existing spousal support award. In re Marriage of Bower, 96 Cal. App. 4th 893, (2d Dist. 2002).

A supporting spouse's cohabitation does not have the same impact on a case. The income of a supporting spouse's subsequent spouse or nonmarital partner will not be considered when determining or modifying spousal support. FC § 4323 (b). The provision was intended to exclude both direct and indirect consideration of new mate income. In re Marriage of Romero, 99 Cal. App. 4th 436, (4th Dist. 2002). 

While the statute does not expressly address expenses, it has been held that not only must new spouse income be disregarded but also the  additional expenses resulting from the remarriage. In re Marriage of Romero, 99 Cal. App. 4th 1436, 122 Cal. Rptr. 2d 220 (4th Dist. 2002).

If you are receiving spousal support and are considering moving in with a friend/partner, keep in mind that your ex could make a motion to reduce support. If you are interested in learning more, you can contact me at Amanda@gordonfamilylaw.com for more information.