allthumbs
Platinum
Reged: 07/12/07
Posts: 455
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Hi folks, new here. Here's the deal. Ex spouse was given temporary spousal support till dissolution. Well, that happened but neither of us modified the existing order. But the crux of the matter is, I need good legal arguments and case precedent for motioning for termination/modification of support because, get ready, the ex was given a 7 yr. suspended sentence for 2 felony DUI's, remanded into custody of probation dept. and now is residing in a rehab center paid for by the state ( we're in CA, BTW ). I know I can argue change of circumstances and her needs are currently being met by the state but it would be great to be able to quote a case to the court where support was modified/terminated because the supported party was incarcerated. I have to do this myself because the attorney fees have already put me in bankruptcy, so now I'm pro per. Of course, I motioned and received total custody of our minor child. So, can any of you legal eagles point me to a particular case where spousal support was denied/terminated/modified due to the supported party being incarcerated. BTW, she also received 75 grand in the settlement and still has some left. Any precedent for getting child support from someone not working while incarcerated out of funds from a settlement? Thanks in advance.
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Samsung
Platinum
Reged: 06/14/07
Posts: 2108
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I doubt her situation would end the alimony. If anything, the state might want the money to pay for the services they are providing. As for CS, you can't get any of the lump sum money, unless there is a court order for support, which is in arrears. Otherwise, CS can be based on interest earned on the money (which probably wouldn't be alot, but it might be some). Good luck.
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allthumbs
Platinum
Reged: 07/12/07
Posts: 455
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I see your point but can you point to any case law to back it up? Furthermore, since the ex committed the crimes, would not the state's demand for income from me be asking the innocent to pay for the crimes of the guilty? Part of her "sentence" was to pay restitution to the victims of her crimes and for costs associated with her crimes. What if she had received a jail sentence instead? Would then the state ask me to pay for her "maintenance" in prison? And are we not all already paying for that in our taxes? Not trying to be argumentative but just trying to see what the court's reasoning may be.
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theanswerguy
Platinum
Reged: 04/12/07
Posts: 2179
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Forget about arguing about her current situation , petition to terminate the temp. order and request CS . While she's in rehab it may be impossible for her to pay support , she will be ordered to pay based on imputed income . Hopefully the CS will be deducted from the SS you are ordered to pay .
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Never let your sense of morals get in the way of doing what's right. Isaac Asimov
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gigi
Platinum
Reged: 11/06/06
Posts: 5042
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File for a change of custody if you don't ahve it already. File for child support. Her incarceration should not affect what they attribute to her as income, because, interestingly, (I'm not sure about calif, specifically, you'll have to check it out there), they consider incarceration to be a voluntary reduction of income (as it was her own fault that she became incarcerated). They'll attribute something to her and if she doesn't get a little pay for some prison/halfway house duties (out of which they might foward some as child support, though that's not a guarantee)... at the very least, when she gets out, she'll already be in arrears... and so you wont' be entirely out.
I don't know about Ca law on modifiability of the alimony, but it probably depends upon whether or not it's designated "non-modifiable" in the decree. If it's modifiable, then go in & say she's not taking responsibiltiy for handling her problems, getting a job and becoming self-supporting, and so you should no longer be required to support her laziness (use a different term than lazines,s but that's waht you want to convey without sounding like a jerk about it... the term "lazy" just amkes teh speaker sound like more of a jerk than the lazy person is). As evidence, you have the fact tha tshe's been convicted twice of DUI and is now on probation with a suspended felony sentence, suggesting that she's drinking when she should be looking for work, and you should not have to support that. By supporting it, you are enabling her to drink, by requiring you to, the state is enabling it.
You sound like you didn't use a laweyr to get the divorce, or else the support stuff owuld have been fixed at the time of the final decree. You probably need a lawye rthis time. There's a lot at stake here, including your child's well being, and you need to invest a little in a lawyer to go get these things modified so you don't end up paying & losing more than you should for the next XXX years. A few thousand for a lawyer now will save you a whole lot more in inappropriate support fees in teh future.
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allthumbs
Platinum
Reged: 07/12/07
Posts: 455
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Thanks for the replies. If you'll notice in my first post, I did file and get total legal and physical custody of our minor child. Also, I did use an attorney, which has put me in the poor house (to the tune of $45,000 )because her attorney was nastier than mine was and the reason I'm filing bankruptcy. Here, attorneys get $300+ per hour. So to hire an attorney to modify a spousal support would cost 6 months of spousal support. I'm hoping the court will will be reasonable but you never know. I'm also asking her to agree to stipulate it so going to court will not be necessary. And here in CA, the courts retain jurisdiction over support "forever" so there is really nothing here that is permanent, unless someone were to agree to that. We were to revisit her support amount prior to the dissolution but agreed to delay it pending the outcome of her criminal charges. Now that has been decided and now it is time to revisit the support amount. In CA, the court is supposed to take the following factors into consideration when ordering spousal support POST DISSOLUTION (permanent support as opposed to temporary support)
4320. 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.
(b) The extent to which the supported party contributed to the
attainment of an education, training, a career position, or a license
by the supporting party.
(c) The ability of the supporting party to pay spousal support,
taking into account the supporting party's earning capacity, earned
and unearned income, assets, and standard of living.
(d) The needs of each party based on the standard of living
established during the marriage.
(e) The obligations and assets, including the separate property,
of each party.
(f) The duration of the marriage.
(g) The ability of the supported party to engage in gainful
employment without unduly interfering with the interests of dependent
children in the custody of the party.
(h) The age and health of the parties.
(i) Documented evidence of any history of domestic violence, as
defined in Section 6211, between the parties, including, but not
limited to, consideration of emotional distress resulting from
domestic violence perpetrated against the supported party by the
supporting party, and consideration of any history of violence
against the supporting party by the supported party.
(j) The immediate and specific tax consequences to each party.
(k) The balance of the hardships to each party.
(l) The goal that the supported party shall be self-supporting
within a reasonable period of time. Except in the case of a marriage
of long duration as described in Section 4336, a "reasonable period
of time" for purposes of this section generally shall be one-half the
length of the marriage. However, nothing in this section is
intended to limit the court's discretion to order support for a
greater or lesser length of time, based on any of the other factors
listed in this section, Section 4336, and the circumstances of the
parties.
(m) The criminal conviction of an abusive spouse shall be
considered in making a reduction or elimination of a spousal support
award in accordance with Section 4325.
(n) Any other factors the court determines are just and equitable.
And this as well:
4321. In a judgment of dissolution of marriage or legal separation
of the parties, the court may deny support to a party out of the
separate property of the other party in any of the following
circumstances:
(a) The party has separate property, or is earning the party's own
livelihood, or there is community property or quasi-community
property sufficient to give the party proper support.
(b) The custody of the children has been awarded to the other
party, who is supporting them.
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