San Diego Divorce Attorneys Blog
One of the first issues a new client will ask us about is support. Whether it is child support, spousal support, or both, support is one of the most important issues in your family law case. It’s easy to understand why. During your marriage income and expenses are shared and over time you find a happy medium between the amount of money you have coming in and the amount of money you have going out to pay expenses. After you separate, the income doesn’t change, but the expenses will often double. That means two rent payments, two food bills, two utility payments…the list goes on. If you and your spouse were just making ends meet before the separation, odds are it will be twice as difficult now that expenses have increased.
Support – either child or spousal support – is intended to assist the receiving party to pay their living expenses during the pendency of the case. This is why it’s so important to discuss support orders with your attorney right away. The best way to do that is to bring along a copy of your tax return with you along with your best estimate of your monthly expenses. With this information in hand, your attorney can immediately file a motion for child and/or spousal support.
So why is it important that you file a motion right away? Simple, a court cannot order support until a motion has been filed. Until you make the request, the court will assume you do not need support. The other reason you need to file a motion right away is what this blog is all about, “Effective Dates for Support Orders.” The effective date is just the date the court decides support is due for the first time. The effective date cannot be any time prior to the date you filed a motion. So for example, if you separate from your spouse on March 15th, but you do not file a motion for support until May 1st, the court cannot order your spouse to pay you support any time before May 1st. Even if you really needed the support to pay your expenses. This issue was addressed by the appellate courts in a case called Marriage of Gruen (2011) 191 CA4th 627.
There is always some delay in receiving support even if you act quickly. Let’s assume again that you separated on March 15th and on that day you filed a motion for support. That means legally, the court can order your spouse to pay you support effective March 15th. However, the hearing on your motion will not be set for at least 45 days and in some cases 90 days. That means you may not have financial support from your spouse until May or July in the above example. In that time period you may need to invade your savings, borrow money from friends or family, or use credit cards to pay your expenses.
But remember what we said earlier, the court has the authority to order your spouse to pay support effective March 15th. So what happens if the court order is not made until two months later on May 15th? The answer is called arrears and they become due upon the entry of the support order. Typically the court will require the supporting party to repay these arrears monthly over a period of time. The monthly payment will depend on the total amount due and the income of the supporting party. As with other support and property orders in family law, these orders last forever until paid and cannot be discharged in Bankruptcy. My advice to client’s is not to spend the arrears money on their monthly expenses, but rather to use the money they receive in arrears to pay down their credit cards, repay loans or replenish their savings. An important part of a dissolution process is adjusting your budget to work with the support orders in your case. If you become comfortable spending the monthly arrears repayment you will have an income shortfall as soon as the arrears have been paid back in full.
There are many different variables at issue when it comes to support orders and effective dates. These include reimbursements and credits, voluntary support, taxes, and deadlines you should discuss with an experienced family law attorney. There are also a few exceptions to the rules above as well as ways to avoid losing out on support you should be paid. But, with the help of an attorney and careful planning, you can minimize the impact of a delay in receiving support.
Feel free to contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child and spousal support. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.