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S. Kincaid
S. Kincaid, Family Law Attorney
Category: Family Law
Satisfied Customers: 2512
Experience:  I have practiced family law since 1996, focusing on child custody and domestic violence
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I started a business in 1991 was divorced in 2007 remarried

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I started a business in 1991 was divorced in 2007 remarried in 2008 and my current wife is asking for a divorce is she entitled to anything from that business
JA: Are there any minor children from the relationship? What is the custody situation?
Customer: No they're all grown and out of the house before we were married
JA: Family law varies by state. What state are you in?
Customer: California
JA: Anything else you want the lawyer to know before I connect you?
Customer: Is she entitled to any support
Customer: replied 2 months ago.
She worked numerous jobs in our years together and spent all of the money on herself. She's been gone a about 25% of our time together out of state with her children and grandchildren. I made her a corporate officer so she can contribute to her social security benefits which money is went right back into our personal account to support or household mortgage and expenses
Customer: replied 2 months ago.
When she's gone she stays with her children or her elderly father who's ill with no expenses to speak of. She uses air miles to travel from my monthly business expenses on the credit card. She has my car that I paid for and around 30,000 in a retirement account where is I have about 10,000. The equity in the house is about 58000 and both of our names are ***** ***** the car is worth about $9,000 in good condition
Customer: replied 2 months ago.
Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Live Phone Call.
Customer: replied 2 months ago.
Let me know if you need more information, or send me the service offer(s) so we can proceed.

Spousal support in California is calculated in two different ways. For temporary orders pending trial, the judge can do whatever s/he wants, but some counties mandate a particular formula. For final orders of spousal support, a formula may not be used. The factors are:

1. Ability to maintain marital standard of living in light of earning capacities: The extent to which the parties' respective earning capacities are sufficient to maintain the standard of living established during the marriage (Ca Fam § 4320(a)).

2. Contributions to other spouse's education, training, etc.:
The extent to which the supported spouse contributed to the other spouse's attainment of an education, training, career position or license. [Ca Fam § 4320(b)] Section 4320(b) is a companion to Ca Fam § 2641, which creates a right of reimbursement for community contributions to one spouse's education or training that "substantially enhances" the spouse's earning capacity.

3. Supporting spouse's ability to pay: The supporting spouse's ability to pay spousal support, taking into account his or her earning capacity, earned and unearned income, assets, and standard of living. [Ca Fam § 4320(c)]

Note: A spousal support order must be consistent with the supporting spouse's ability to pay as determined by his or her circumstances at the time of the support hearing--i.e., the obligor's present (not past or future) circumstances (current income/cash flow, assets, earning capacity, etc.) control.

4. "Needs" in light of marital standard of living: The needs of each party based on the standard of living established during the marriage. [Ca Fam § 4320(d)] "Need" includes more than "bare necessities of life." But § 4320(d) expressly codifies well-established case law consensus that "need" must also be judged in terms of the parties' station in life during marriage and before separation.

5. Parties' assets and debts: The parties' respective assets and obligations, including the separate property of each. [Ca Fam § 4320(e)] Thus, aspouse's separate estate (including assets allocated to each as a result of the community property division)--and the reasonable income potential therefrom--may require the "withholding" of support altogether or a termination of previously-awarded support. [Ca Fam § 4321(a)]

6. Duration of marriage. [Ca Fam § 4320(f)] The length of the parties' marriage bears both on the "need" for support (whether it should be ordered) and on the amount and duration. The longer a spouse has been out of the job market on account of the marriage, the stronger the case for granting support; by the same token, a relatively short marriage can, depending on the other § 4320 factors and the "totality of the circumstances," offset alleged "need" and justify a lower level of support and/or a shorter support term.

7. Employability of custodial spouse vs. impact on children: The ability of the supported spouse to engage in gainful employment without interfering with the interests of dependent children in his or her custody. [Ca Fam § 4320(g)] Section 4320(g) recognizes the overriding public policy concern for the welfare of the parties' minor children. Theoretically, e.g., weighing all relevant circumstances, the needs of young children may justify indefinite spousal support to a custodial parent even after a relatively short marriage.

8. Age and health of the parties. [Ca Fam § 4320(h)] On balance and after weighing all of the § 4320 factors, age and health may warrant either an extension or withholding of support. Age and health considerations are also particularly relevant to the question of duration of support.

9. History of domestic violence: Documented evidence of any history of domestic violence (as defined in Ca Fam § 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. [Ca Fam § 4320(i)]

10. Tax consequences: The immediate and specific tax consequences of spousal support to each party (e.g., who pays the taxes, who gets the deduction, what effect on net income). [Ca Fam § 4320(j)]

11. Relative hardships: "The balance of hardships to each party." [Ca Fam § 4320(k)] This factor seems to underscore the court's obligation to consider and weigh all of the § 4320 circumstances in determining the appropriate amount and duration of spousal support.

12. Goal of self-support: "The goal that the supported party shall be self-supporting within a reasonable period of time." [Ca Fam § 4320(l) (e)] Except in marriages of long duration (as described in Ca Fam § 4336, a "reasonable period of time" within which to achieve the goal of self-support "generally shall be one-half the length of the marriage." [Ca Fam § 4320(l)]

13. Spousal abuse conviction (mandatory factor for support reduction/termination): The criminal conviction of an abusive spouse is a mandatory factor to be considered in making a reduction or termination of spousal support in accordance with Ca Fam § 4325. [Ca Fam § 4320(m)]

14. Other "just and equitable" factors: "Any other factors the court determines are just and equitable." [Ca Fam § 4320(n)] This final factor is a "catch-all," clarifying the court's authority to consider any other circumstances, although not expressly codified, bearing on the propriety of awarding support and, if so, its amount and duration.

Do you have questions about any of those factors?

Customer: replied 2 months ago.
Thank you. Very helpful and a good starting point if required in the future

If you have no further questions, I'd appreciate if you would rate my answer so I may get credit for my work. If you still do have questions, I'd be happy to continue to work with you.

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