I found out my ex is making more money...now what?

When it comes to child support (and often also spousal support) it is inevitable that at some point after you receive an order from the judge that the income of one of the parties will change. When this happens you are under a fiduciary duty to notify the other side of your income change (and them to tell you about their income changes). After notification either party can move for a modification. The amount will then go up or down based on the financial situation (and custody time if child support) that the parties currently have.

You do this by filing a Request for a Modification Order. Along with this will come filing a revised Income and Expense declaration and providing the other party with copies of your paystubs, and also possibly taxes. The court will then put these equations into the magic calculator (also known as dissomaster) and come out with the new support payment amounts.

Don't get hung up on the label

Often people get hung up on the label of who gets physical custody.

Legal Custody = who gets to make the big decisions in life - health, education, religion, etc. Most of the time parents will share joint legal custody.

Physical Custody = who the child lives with the majority of the time.

Often it makes the most sense to label someone as having "sole physical custody" however what you really should pay attention to is the amount of visitation that the other party has. If you are getting 40% visitation then honestly your ex having the label of sole physical custody does not make too much of a difference legally.

The main thing to pay attention to is the amount of visitation time you get as well as making sure that you address the holiday time, school vacation time, and tax ramifications of custody time. Tax wise, unless you agree otherwise in your court order, the person who has 50.01% of the custody is the person that gets to claim the child EVERY SINGLE YEAR. So make sure that you also address taxes in your agreement. Typically parents who share custody (60/40, 50/50, or a similar split) will agree that parent #1 claims the children on even years (2012, 2014, etc) and parent #2 claims the children on odd years (2013, 2015, etc). Also if there are 2 children sometime parents will agree that every year each parent claims one child.

Holidays and Custody

It is essential that when going through a parentage action or divorce, that you account for holiday custody arrangements to avoid problems down the line.

Typically people will alternate who has Thanksgiving and Christmas (for example mom gets Thanksgiving on even years (2012, 2014 etc) and Dad gets Thanksgiving on odd years (2013, 2015, etc). The same is done with Christmas, except the parent who gets Thanksgiving is usually not the person who gets Christmas that year. Parents often also give Christmas Eve to the person who does not have the child on Christmas days.

Of course there are different schedules for each family. If you live far apart, cultural/religious schedules, etc are all important factors that play a part on the schedule that your family will agree to.

No matter what schedule works for you, make sure it is part of your court order so that there is no confusion and so it can be enforced later.

Retirement Accounts

One of the biggest mistakes people make when they do their own divorces or use a paralegal/legal document assistant to help them, is not dividing the retirement account properly.

Certain types of accounts need to have the company joined to the suit as a "party" so that they are on proper notice of the final division and can therefore properly pay out to each party once they reach retirement age.

There are attorney's that are specialists that handle these types of accounts. They are called QDRO specialists and they are quite pricey - but cost less then trying to go after the 401k/pension company 40 years from now when you retire. Generally when I have clients with small amounts in their account at the time of divorce, I have them exchange it for another asset or see if they can roll it over into an IRA in their own name immediately. If those options are available they will be far cheaper than a QDRO specialist and there is usually not a point in paying 5-10k to restructure retirement accounts that are only worth 10k themselves.

Stepparent Adoption

In California there is a streamline process for stepparent adoptions. If you have the biological parent's consent then the process can be fairly simple. If you do not have their consent it becomes a lot more difficult. You will need the court to rule in your favor. The easiest way to do that is to show that the other biological parent has abandoned the child. This is defined as not communicating OR supporting the child within the past year. If that is the case, the judge will often rule in your favor. If not the case, the stepparent will likely not be able to adopt the child.

Additionally, keep in mind that if the stepparent does in fact adopt the child that in the eyes of the law they are a parent with all rights to support, visitation, etc after a divorce or death. The biological parent's rights are essentially terminated and the stepparent steps into their place.

730 Evaluations - Required in Most Move Aways

Sometimes the court looks at all of the evidence and still does not feel that they can truly determine the best interest of the child. Due to the need for more information, they order a 730 Evaluation. A marriage and family therapist who has does some other special training and approved by your county  courts will meet with both parents, the child, and anyone else that they deem necessary (teachers, half siblings, doctors, etc). They will also review report cards, letters from friends, medical records, and any other pertinent documents.

Although a wonderful way to ensure that the child is met with and all of the information is on the table, these can be incredibly expensive. If you can get a focused evaluation - meaning they look at just the move away and not custody as a whole (or whatever other issue you have in front of the court) you can usually find a flat fee of about 3,000-5,000. If you do an ENTIRE evaluation they can cost 10k-20k.

Due to the cost people try to avoid them wherever possible. However the court and mediators if you are in a recommending county, can request one if they feel that it is needed.

Reconciliations

Sometimes people who have filed for divorce consider reconciliation. Some of these end up being long term and some of these reconciliations fall apart again a few months later. If you have filed all of your paperwork with the court and now are deciding to reconcile, instead of dismissing the case immediately, I would suggest that you and your partner enter into a Stipulated Order that basically puts the case on hold for the time being, but gives you until a certain date (usually a year) to reinstate the case without having to completely refile all of your paperwork from the beginning.

You do not want to just do nothing and let your case sit -- this is especially true if you are in a situation that may result in a default judgment, or if you filed an agreement or order that the court may sign within 6 months. It also can make things murky since CA is a community property state.  Talk to an experienced family law attorney about filing the correct paperwork to put your case on hold until you can determine that your reconciliation is forever.