Legal Separation

In California, once a legal separation is finalized, it does not automatically restore the marital status if you later decide to reconcile. The legal separation remains in effect unless formally changed. Here’s a brief overview of your options:

1. Joint Request for Restoration: A joint Request for Order (RFO) to restore the marriage status might seem like a viable option, but there is no specific legal authority or precedent in California allowing a court to "restore" a marriage status after a legal separation in the way described. The typical legal process requires a divorce or dissolution of the separation and then a new marriage to restore marital status.

2. Post-Nuptial Agreement: Executing a post-nuptial agreement that retroactively addresses the economic features of the marriage is a practical approach to address financial and property issues from the separation period. While this agreement can restore economic aspects, it does not alter the legal status of the marriage or change the separation status in the eyes of the law.

3. Restoration of Marital Incidents: If the goal is to restore certain benefits or aspects associated with marriage, such as financial or inheritance rights, a post-nuptial agreement may be useful. However, this agreement does not equate to legally restoring the marriage status for all purposes, such as tax or legal status.

4. Remarriage: The most straightforward legal method to fully restore marital status is to go through a divorce and then remarry. This process officially terminates the separation and re-establishes the marriage.

Navigating Legal Separation and Dissolution in California: What You Need to Know

If you’ve recently moved to California and are considering legal separation, it’s important to understand the process and requirements. Here’s a breakdown of what you need to know about filing for legal separation and converting it to dissolution, along with the disclosure obligations involved.

Starting with Legal Separation

In California, a couple who has recently relocated to the state can file for legal separation immediately. This option allows you to address the terms of your separation without terminating the marriage. After six months, you have the opportunity to convert this legal separation into a dissolution (divorce).

Disclosure Obligations

During a legal separation action, both parties are required to meet disclosure obligations. This includes exchanging financial information to ensure transparency. The law stipulates a 60-day time frame for serving disclosures. This is the latest date by which the responding party must be served. If disclosures are not provided by this deadline, the responding party can compel disclosure.

Mediation and Disclosure Preparation

It’s worth noting that filing a legal action is not a prerequisite for starting mediation or preparing disclosures. However, if you proceed with mediation or other settlement discussions, a court cannot issue a final judgment without a declaration of service of disclosures on file for both parties. This ensures that all necessary information has been shared and reviewed.

Converting Legal Separation to Dissolution

When you’re ready to convert your legal separation to a dissolution, you’ll need to file a new Petition with the court. This petition should be marked “Amended” and should request dissolution instead of legal separation. This step finalizes the process of ending the marriage and allows for the issuance of a divorce decree.

Summary

Understanding the nuances of legal separation and dissolution in California can help you navigate the process more effectively. From meeting disclosure obligations to converting a separation into a dissolution, being informed about each step can make a significant difference in your experience.

Understanding Depreciation and Amortization in Child Support Calculations: A Closer Look

When it comes to determining income for child support calculations, certain deductions such as depreciation and amortization can become points of contention. This blog post aims to provide clarity on whether amortization, specifically related to business start-up costs, should be considered an expense that reduces a party’s income for the purposes of calculating child support in California.

Depreciation vs. Amortization: Key Differences

Depreciation is the process of allocating the cost of a tangible asset over its useful life. For example, in a manufacturing business, specialized equipment that must be replaced periodically incurs real economic loss over time. This loss is recognized through depreciation, which spreads the cost of the asset over its useful life.

Amortization, on the other hand, refers to spreading the cost of an intangible asset over its useful life. This often includes start-up costs for a business. Like depreciation, amortization is a non-cash expense, meaning it is a conceptual cost rather than an actual out-of-pocket expense.

Legal Considerations in Child Support Calculations

Under the new Family Code Section 4058, effective September 1, 2024, annual gross income for child support calculations is defined to include:

• Income from various sources such as wages, salaries, bonuses, and rents.

• Income from the proprietorship of a business, reduced by expenditures required for the operation of the business.

The critical issue is whether amortization should be added back into the income for child support calculations. While depreciation and amortization are both tax deductions, they do not involve actual out-of-pocket expenses. Therefore, they are not traditionally considered allowable expenses for child support purposes.

Insights from Case Law

In the case of Marriage of Hein (2020), the court examined the treatment of depreciation and section 179 deductions. The court held that:

• Depreciation for equipment and other business assets, as well as section 179 expenses, should not be treated as statutory deductions in calculating income available for child support.

• The reasoning is that depreciation and similar accounting entries do not involve the actual outlay of funds in future years. Hence, these should not reduce the income available for child support.

Practical Implications

Given the court's stance in Hein, it is likely that amortization related to business start-up costs will also not be treated as a deductible expense for child support calculations. The underlying principle is that child support calculations should reflect the actual income available, excluding non-cash deductions like depreciation and amortization.

However, there are some nuances to consider:

• Economic Reality: In businesses where depreciation and amortization reflect real economic costs, such as the replacement of specialized equipment, there may be an argument for considering these deductions in child support calculations.

• Tax Implications: Depreciation and amortization are part of the actual tax calculation. Ignoring these could result in an inaccurate representation of net spendable income.

Conclusion

While the Family Code and case law provide guidance, the treatment of amortization in child support calculations can still be complex. Each case may require a detailed analysis of the business's financial situation and the actual economic impact of these non-cash expenses.

For individuals dealing with these issues, consulting with a knowledgeable family law attorney is crucial to ensure that child support calculations are fair and accurate. If you have questions about how your business expenses might impact your child support obligations, consider seeking professional legal advice to navigate these complex financial considerations effectively.

2024 updates to 4061(b)

What are Child Support Add-Ons? Child support add-ons cover additional expenses beyond basic living costs, such as childcare, healthcare, and educational needs. These add-ons can be mandatory, meaning the court must order them paid, or discretionary, meaning the court can order them paid based on specific circumstances.

Key Changes:

• Mandatory Add-Ons: These include work-related childcare costs (or necessary education for employment skills) and uninsured healthcare costs for the children.

• Discretionary Add-Ons: These cover costs related to the educational or other special needs of the children and travel expenses for visitation.

Previous Law: Under Family Code § 4061(a), there was a presumption that child support add-ons would be split 50/50 between parents. The parent requesting a different apportionment had the burden of proving that an alternate distribution would be just.

New Law (Effective September 1, 2024): The new Family Code § 4061(a) changes the presumption to apportion add-on expenses according to the parents’ net incomes. This means that the financial contributions will be more accurately aligned with each parent’s ability to pay.

Impact: This change ensures that wealthier parents contribute a fair share based on their income, promoting equity in covering additional child-related expenses.

2. Changing How Childcare Costs Are Collected

Previous Law: Childcare costs related to employment or necessary education/training for employment skills were collected as additional child support, based on a presumed need.

New Law (Effective September 1, 2024): Under the updated Family Code § 4062(a)(1), childcare costs will be collected as additional child support only if those expenses are actually incurred. This change ensures that only genuine costs are considered in child support calculations.

Key Differences:

• Current Law: Childcare costs related to employment or education/training for employment skills are automatically considered.

• New Law: Childcare costs must be actually incurred and necessary for employment or education/training for employment skills, unless specifically included in the guideline calculation itself.

Impact: This update aligns child support obligations with actual expenses, ensuring parents only pay for legitimate childcare costs. For wealthier families, this means a more accurate reflection of their financial responsibilities.

Conclusion: The 2024 updates to California's child support laws bring significant improvements in how child support add-ons and childcare costs are calculated and apportioned. These changes ensure a fairer distribution of expenses, particularly for higher-income families, by aligning contributions with actual financial capacity and incurred costs. If you have any questions about how these changes might affect your child support obligations, please contact us for personalized guidance and support.

Child Support Changes in 2024

The year 2024 is bringing significant changes to the child support landscape in California. These updates aim to create a fairer, more efficient system that better addresses the needs of both parents and children. Here’s a comprehensive look at the key changes that will impact child support calculations and enforcement starting this year.

1. Pass-Through of Assigned Welfare Arrears

What’s New? Previously, only a portion of child support payments passed through to families on welfare. With the introduction of Family Code § 17504.2, 100% of assigned arrears will now pass through to formerly assisted CalWORKs families starting May 2024. By January 2025, this will extend to currently assisted families with the implementation of Family Code § 17504.4.

Impact: This change ensures that more child support reaches the families who need it most, rather than being used to reimburse the state. It provides crucial financial support directly to families, helping them better meet their needs.

2. Prove-Up Hearings for Earning Capacity Cases

What’s New? For cases where child support is based on presumed income, courts will now require prove-up hearings starting in 2026. This means that a detailed examination of the obligor’s earning capacity will be conducted, and annual reviews will be mandated to adjust support based on actual income.

Impact: This approach ensures a fairer assessment of the obligor’s ability to pay, reducing defaults based on inaccurate income assumptions and promoting transparency in income reporting.

3. Changes to the Child Support Formula

What’s New? The “K factor,” which determines the percentage of net income allocated for child support, has been updated for the first time in over 30 years. The new formula lowers the percentage for lower-income parents and adjusts it progressively for higher-income brackets. Effective September 1, 2024, the new Family Code § 4055 will implement these changes.

Impact: This adjustment aims to make child support payments more equitable and reflective of parents' financial realities. It helps alleviate the financial burden on low-income parents while ensuring adequate support for their children.

Examples:

• Parent A earns $5,000, Parent B earns $4,000, and they have two children.
  Old guideline: $1,418
  New guideline: $1,679

• Parent A earns $3,000, Parent B has no income, and they have one child.
  Old guideline: $720
  New guideline: $582

4. Higher Threshold for Low-Income Adjustments

What’s New? The threshold for low-income adjustments has been significantly increased. Starting September 1, 2024, the new threshold will be $2,773.33 per month, up from $2,056 per month in 2023. This adjustment is tied to the full-time minimum wage.

Impact: This substantial increase provides relief to low-income parents by creating a rebuttable presumption of a downward adjustment in support, ensuring that child support obligations do not disproportionately burden those earning below the threshold.

5. Greater Latitude for Deviation from Guideline Support

What’s New? New provisions under Family Code § 4057(b)(5) allow courts to reduce support amounts if, after applying the low-income adjustment, the support still exceeds half of the obligor’s net income. Additionally, Family Code § 4057(c) provides courts with greater flexibility to deviate from guidelines when multiple child support cases are involved.

Impact: These changes offer much-needed flexibility and fairness, especially for obligors with multiple child support obligations, ensuring support orders are more manageable and just.

6. Updated Apportionment of Child Support Add-Ons

What’s New? The new law presumes that add-on expenses will be apportioned according to the parents’ net incomes, rather than the previous 50/50 split. Effective September 1, 2024, the burden of proof lies on the parent requesting a different apportionment to demonstrate that it would be just.

Impact: This change ensures that child support add-ons are allocated more equitably based on each parent’s financial capacity, reflecting their true ability to contribute to additional child-related expenses.

7. Changes to Childcare Cost Collection

What’s New? Childcare costs related to employment or necessary education/training for employment skills will now be collected as additional child support, provided these expenses are actually incurred. This change is effective September 1, 2024, under Family Code § 4062(a)(1).

Impact: Aligning the collection of childcare costs with actual expenses ensures that parents only pay for costs that are genuinely needed, promoting fairness in child support orders.

8. Adjustments for Incarcerated Obligors

What’s New? Child support for incarcerated obligors will be suspended until the first full day of the tenth full month following their release, effective January 1, 2024, under Family Code § 4007.5. This replaces the previous sunset clause that required legislative renewal.

Impact: This provision offers a more predictable and fair system for adjusting child support obligations for incarcerated individuals, helping them reintegrate into society without the burden of insurmountable debt.

9. Uncollectable Debt

What’s New? Local Child Support Agencies (LCSA) are now permitted to cease enforcement of child support arrearages assigned to the state that are determined to be uncollectable, as per Family Code § 17400(a)(2)(A). This does not impact arrears owed to the parent.

Impact: This change allows for more efficient use of resources by focusing enforcement efforts on collectable debts, while relieving obligors of the burden of uncollectable arrears.