Types of Custody: Shared Legal - Shared Physical - Shared Residency. Wait...What?!

(See 8/25/11 update at the end of this post.)

Do you and your ex share equal or near equal physical custody of your child(ren)? ... Yes?

Do you support your child(ren) in your household at or near the same level that your ex supports them in hers? ... Yes??

Does your ex now have a household income or lifestyle equal or nearly equal to, or even exceeding yours? ... Yes???

And despite all this, is your household deprived of a huge chunk of your taxable earnings each payday because they’re diverted from your paycheck to her household - tax-free to her? ... Yes????

Are you frustrated by having to support your child(ren) in your household and in hers? ... Hell yes?!!!!

Why are you paying so much?!

Because no one’s ever told you about shared residency! That’s not surprising: we’d never heard of it, either. Not even after 7 years of this crap! Nope...not until I stumbled across the term a couple of weeks ago while researching child support! You got it! My husband’s highly-paid attorney never mentioned it once even though he was granted 46% physical custody! It apparently never occurred to her! (By the way: be sure to see my What Does Child Support Cover? post for a breakdown of just what child support is supposed to be used for...it's eye-opening! And, yes, this is another area that no one--not even my husband's attorney--thought to explain! Ugh!!)

So in addition to shared legal and shared physical custody, my husband has had shared residential custody without knowing that such a thing existed, as we, too, have his kids in our care often enough that we have to buy them furniture, bedding, clothes, shoes, school supplies, over-the-counter medicines, toiletries, laundry and cleaning supplies, etc., etc., etc. In fact, we spend an average of at least $5,000 a year for these types of expenses exclusively...AND we've been paying for 50% of their extracurricular activities...$900 just this year!...because no one has ever explained to my husband that he didn't have to! (I've since learned that, in general, the Court only ever orders the "non-custodial parent" to share in the cost of extracurricular activities if he or she is a millionaire, which we are not!!)

And here’s the kicker: the court has no idea we're doing this (not yet, anyway)! It just never occurred to them that my husband would have to share in these expenses when the kids are at our house for days on end! They just stupidly assumed that their mom would be the only one to incur these types of expenses, and that they would be covered with the child support my husband pays each month. They never once gave a second thought to the fact that my husband would have additional expenses…like clothes for the kids to wear at his house, or tooth brushes and toothpaste to brush their teeth at his house, or beds to sleep in at his house, or…well…you get the picture.

Once the Court is made aware of our situation, my husband's child support obligation will be dramatically reduced—and in all likelihood eliminated!

Craziness, huh?!

So what is shared residency? It's the regular sharing of residential custody on an equal or nearly equal basis. To qualify, two components must exist:
• First, the blocks of time must be regular and equal or nearly equal between the parents throughout the year rather than based on extended visitation (e.g. summer visitation, holidays).
• Second, the parties must be sharing direct expenses of the child on an equal or nearly equal basis, which include (but aren't limited to) clothing and education expenses, but don’t include food, transportation, housing or utilities.

Does this sound like you? Yes? Then I suggest you research this further on your own, and then do something about it (e.g., contact an attorney or your family court's self-help center for advice and assistance).

Let me know if you have any specific questions...I may be able to help. And good luck!

8/25/11 Update: We consulted with my husband's former attorney to discuss shared residential custody (among other issues) and were told that California does not recognize shared residential custody; that guideline child support is based solely on each parent's income. That being said, while I trust my husband's former attorney, I'm not convinced that the information she gave us is accurate. First, when I research an issue, I limit my research to the State of California. Second, it has been our firsthand experience that factors beyond income are considered when setting guideline child support (e.g. percentage of parenting time, income-to-debt ratio). Third, between my extensive research and my personal observations and experiences, I've found evidence that completely contradicts her statement. Obvsiously there is more research to be done on this issue, and I will update this post with my findings. In the meantime, be aware that shared residential custody does exist, and be sure to raise this issue with your ex when discussing a fair support amount (if you're able to work things out between yourselves) or with an attorney if you choose to consult with one. Stay tuned...

Your Ex and Your Bonus

Pretty amazing, huh? You really are expected to share your bonus with your ex! I know, I think that’s a bunch of hooey, too!

But here’s something CRITICAL to consider right off the bat: are your bonuses included in your W-2? This is important because your support payments are based on your gross W-2 earnings, and if your bonus is already included in your W-2 AND you’re ordered to pay her a percentage of your bonus, then you’re paying her TWICE for your bonus!!!

It’s not likely that anyone else will raise this issue (no one did in our case…or should I say, no one but ME!), so be prepared to raise it yourself.

Here’s our tale of woe:

My husband’s 7/23/03 Order After Hearing stipulated: “7. In the event Respondent receives any future bonus income as a result of employment, he shall pay to Petitioner an additional support amount equal to 23% of such bonus within 10 days of the date on which he receives any such bonus.”

He did as ordered and paid THE DEVIL 23%—or $1,120.79—of his 2003 bonus on 2/16/04, which he’d received on 2/6/04. But this order was stipulated in error. He should never have been ordered to pay THE DEVIL any part of his annual bonuses because they're already included in his W-2s and, as such, are already factored in to his monthly support payments. (!!!) This error wasn’t brought to his attention until I questioned it in 1/05. His attorney didn’t question it, the judge didn’t question it...and even he didn’t question it. In fact, no one considered that his bonus might already be included in his W-2!

This order was reversed in his 1/25/05 Order After Settlement Conference: "5. The order after hearing filed in this matter on 7/25/03, which sets forth the current support orders, requires Respondent to pay Petitioner 23% of any bonus income he receives. Respondent contends that his bonus income is included in the calculation of his gross wages and that to require him to pay an additional 23% of any bonus he receives results in a double calculation for that income for support purposes. Accordingly, Respondent’s obligation to pay Petitioner 23% of his bonus income is hereby stayed without prejudice…"

And while it is absolutely, 100% true that my husband's bonuses are, in fact, included in the calculation of his gross wages, it’s also very interesting to note that at no time was he ever made to substantiate this claim (note the language of his order: “Respondent contends that this bonus income is included in the calculation of his gross wages…”). Hmmm…

He, of course, was not reimbursed for any part of his $1,120.79 overpayment to THE DEVIL.

Family Code Section 4320 - Spousal Support

Note: Excerpts from two pertinent court of appeals cases are inserted in this transcript for further consideration and discussion with your attorney; they are not a part of the California Family Code.

Family Code Section 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 [your ex]; 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 [your ex] present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party [your ex] to devote time to domestic duties.

......(b) The extent to which the supported party [your ex] contributed to the attainment of an education, training, a career position, or a license by the supporting party [you].

......(c) The ability of the supporting party [you] to pay spousal support, taking into account the supporting party's [you] 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.

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In re the Marriage of RICHARD and BARBARA SIMPSON, No. B048099, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION SEVEN, February 13, 1992, Decided: “After dissolution, a family may be entitled to be supported at what would have been a reasonable standard of living ... given what [Husband] would have earned had he worked at a reasonably human pace." … They are not entitled to continued guaranteed support at a standard of living which existed only because the supporting spouse ‘worked excessive hours during the marriage.’”
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......(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 [your ex] 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 [your ex] by the supporting party [you], and consideration of any history of violence against the supporting party [you] by the supported party [your ex].

......(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 [your ex] 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.
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In re the Marriage of JEANNE and ROBERT H. ANINGER, No. B038780, Court of Appeal of California, Second Appellate District, Division Seven, 220 Cal. App. 3d 230; May 11, 1990: “The only factor adversely affecting [Wife’s] ability to meet her needs was an increase … in her housing cost resulting from her purchase of a $280,000 condominium. … …it would defeat the intent and reasonable expectations of the parties that [Wife] would achieve self-support … by going into debt far beyond her means. … By undertaking a debt beyond her reasonable means to pay presently or in the foreseeable future, [Wife] failed to make a reasonable effort to become self-supporting.”
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NOT Insuring Your Ex after Divorce

The only possible way to keep your ex on your employer’s group health insurance plan is to file for a legal separation instead of a divorce (see my "Legal Separation or Divorce" post).

Otherwise, regardless of what your ex expects or demands, the good news for you is: YOU CAN’T. Not through your employer’s group plan, anyway. And not even if you wanted to! You can only insure family members through your employer’s group plan, and your ex is no longer a member of your family!

However, if you’ve been covering her up to your divorce date, and your employer has more than 20 employees, you might want to let her know (if you want to) that she’s eligible under COBRA for coverage equal to yours for 36 months after your divorce. She’ll have to pay for it out of her own pocket, of course…but at least she’ll be able to get health insurance if she can’t get it through her own employer.

And don’t go and try to be “Mr. Nice Guy” by keeping her on your health insurance even after your divorce is final, because it could bite you in the butt! A friend of ours did, and ended up having to reimburse his employer for every last penny that they’d spent toward her health insurance from the date his divorce was final! We were lucky: my husband waited a couple of months before dropping his ex, but because their end date was fuzzy (it was left open because it was based on her being seen by a specialist first), his employer let it slide. Same employer as his friend, but different circumstances...so, again, be careful!

Our story…

My husband’s divorce took YEARS, and in all that time the devil was eligible for FREE health insurance through her employer. But she refused it out of spite…she wanted my husband to have to pay for her coverage because it was costing him an additional $5,000 a year! Well, as you can imagine, my husband took great satisfaction in finally being able to drop that bitch from his plan! But to add insult to injury, when he finally DID drop her--2 years after he should’ve been able to--she actuallly had the nerve to be petulant and insulting about it! What a surprise!

Ah, Bifurcation!

WHAT IS A "BIFURCATION"?

When you bifurcate your marriage, you are no longer married...but you're not done with your divorce yet, either.

Under State law, you can "bifurcate" your marital status from all of your other issues (child custody, child visitation, child support, spousal support, distribution of property, attorney fees, and personal conduct) and return to the legal status of an unmarried (single) person. But because your other issues are unresolved, the court retains the ability to resolve them.

WHY BIFURCATE?

There are at least two reasons to bifurcate your marriage:

1. Your divorce has been dragging on and on, and you just don't want to be married to that bitch anymore (which was my husband's case).
2. It's well past the 6-month mark, and you want to get married again (to someone else, of course...not to your ex!).

CAUTION: The way the law is written (see the blue, bolded text below), even if you bifurcate your marriage, you could still be stuck paying for your ex's health insurance! So if you DO decide to bifurcate, tell your attorney that you want it stipulated that your ex will be responsible for obtaining and maintaining her own damn health insurance, whether through her employer or through COBRA (see my post "NOT Insuring Your Ex After Divorce").

My husband requested a bifurcation from the devil because even though they'd separated in August 2002, he and the devil were STILL married when they were ordered to a Status Conference in January 2005! Do the math...that's 2 years and 3 months after their separation date! His request was granted, and they were bifurcated in April 2005. Yes, I know...that's CRAZY! (Then again, so is the devil: Borderline Personality Disorder, Dependent Personality Disorder, Histrionic Personality Disorder, etc., etc., etc.)

Anyway, here's an excerpt from my husband's Order After Status Conference that you can use when talking to your attorney about bifurcation and healthcare insurance:

.....“The parties stipulate and agree that the marital status shall be bifurcated and a judgment for dissolution of the marriage submitted to the court. ... In entering into this stipulation, each party acknowledges that medical insurance is available to him or her through their respective places of employment and upon entry of the judgment of dissolution contemplated herein, each party shall be responsible for obtaining and/or maintaining his or her own medical insurance coverage.”

So here's the kicker: after 6-2/3 years, my husband and the devil STILL don’t have a signed Judgment of Dissolution!!! And do you know, it doesn’t really matter because they're bifurcated! All of their other issues were settled at trial 8 months after their bifurcation, so - technically - they're done...but the devil won’t sign the final Judgment! Why? Because it's FAIR!

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Family Code Section 2330-2348

2337. (a) In a proceeding for dissolution of marriage, the court, upon noticed motion, may sever and grant an early and separate trial on the issue of the dissolution of the status of the marriage apart from other issues.

.....(b) A preliminary declaration of disclosure with a completed schedule of assets and debts shall be served on the nonmoving party with the noticed motion unless it has been served previously, or unless the parties stipulate in writing to defer service of the preliminary declaration of disclosure until a later time.

.....(c) The court may impose upon a party any of the following conditions on granting a severance of the issue of the dissolution of the status of the marriage, and in case of that party's death, an order of any of the following conditions continues to be binding upon that party's estate:

..........(1) The party shall indemnify and hold the other party harmless from any taxes, reassessments, interest, and penalties payable by the other party if the dissolution of the marriage before the division of the parties' community estate results in a taxable event to either of the parties by reason of the ultimate division of their community estate, which taxes would not have been payable if the parties were still married at the time the division was made.

..........(2) Until judgment has been entered on all remaining issues and has become final, the party shall maintain all existing health and medical insurance coverage for the other party and the minor children as named dependents, so long as the party is legally able to do so. At the time the party is no longer legally eligible to maintain the other party as a named dependent under the existing health and medical policies, the party or the party's estate shall, at the party's sole expense, purchase and maintain health and medical insurance coverage that is comparable to the existing health and medical insurance coverage. If comparable insurance coverage is not obtained, the party or the party's estate is responsible for the health and medical expenses incurred by the other party that would have been covered by the insurance coverage, and shall indemnify and hold the other party harmless from any adverse consequences resulting from the lack of insurance.

..........(3) Until judgment has been entered on all remaining issues and has become final, the party shall indemnify and hold the other party harmless from any adverse consequences resulting to the other party if the bifurcation results in a termination of the other party's right to a probate homestead in the residence in which the other party resides at the time the severance is granted.

..........(4) Until judgment has been entered on all remaining issues and has become final, the party shall indemnify and hold the other party harmless from any adverse consequences resulting to the other party if the bifurcation results in the loss of the rights of the other party to a probate family allowance as the surviving spouse of the party.

..........(5) Until judgment has been entered on all remaining issues and has become final, the party shall indemnify and hold the other party harmless from any adverse consequences resulting to the other party if the bifurcation results in the loss of the other party's rights to pension benefits, elections, or survivors' benefits under the party's pension or retirement plan to the extent that the other party would have been entitled to those benefits or elections as the surviving spouse of the party.

..........(6) Prior to entry of judgment terminating status, both of the following shall occur:

...............(A) The party's retirement or pension plan shall be joined as a party to the proceeding for dissolution.

...............(B) If applicable, an order pursuant to Section 2610 shall be entered with reference to the defined benefit or similar plan pending the ultimate resolution of the distribution of benefits under the employee benefit plan.

..........(7) The party shall indemnify and hold the other party harmless from any adverse consequences if the bifurcation results in the loss of rights to social security benefits or elections to the extent the other party would have been entitled to those benefits or elections as the surviving spouse of the party.

..........(8) Any other condition the court determines is just and equitable.

.....(d) A judgment granting a dissolution of the status of the marriage shall expressly reserve jurisdiction for later determination of all other pending issues.

.....(e) If the party dies after the entry of judgment granting a dissolution of marriage, any obligation imposed by this section shall be enforceable against any asset, including the proceeds thereof, against which these obligations would have been enforceable prior to the person's death.

What’s a QDRO?

A QDRO, or Qualified Domestic Relations Order, is a court order issued to your wife that grants her the right to receive all or part of your vested interest in a private retirement plan.

Your attorneys must determine the present value of your plan, and if you and your wife don't agree on the value, the judge will decide it for you based on expert testimony ($$$). So unless the difference is substantial, you’d be better off negotiating the difference.

If your wife isn’t counting on a deferred settlement for retirement income later on, her attorney will likely offer an immediate offset settlement, which would treat the value of each of your marital assets (including debt) as tradable commodities to use as bargaining chips. You’d each take one asset to offset one being retained by the other party. In this case, you might consider offering your wife a larger share of the marital home by offering her a credit of 100% of the value of the marital portion of your pension (vs. the usual 50% she’d normally get), which would increase her share of the home's equity, while you could retain all of your pension.

For example: Let’s say that you have $150K equity in your home; her half is $75K. And let’s say that the value of the marital portion of your pension is $50K; her half is $25K. But rather than give her $25K of your pension, you offer her a 100% credit of your pension’s value toward her share of the home’s equity, which increases her equity share to $125K ($75K + $50K = $125K). While this reduces your equity share by $25K, you'd make up the $25K by retaining the full value of your pension.

An alternative to an immediate offset settlement is a deferred settlement, which requires a QDRO for private retirement plans. You'll still need a Domestic Relations Order for a public plan (federal, state, local or military), but not a “Qualified” order.

Your wife will most likely receive a monthly income from your pension once you’re eligible to retire, but with a 401(k), ESOP, Profit Sharing Plan, etc., she'll be paid out immediately once the plan receives and approves the order.

However, in our case, the devil accepted an offer from the plan administrator to be paid out IMMEDIATELY from his PENSION.

And here’s the kicker: The plan administrator has assured my husband that paying the devil a one-time, lump-sum $6K payment will have NO effect whatsoever on the amount of his retirement!

So, hell yeah, we were excited about that!

Uh-oh...I Worked 'Crazy' Overtime Before! Now What?!

In ordering spousal support, the court considers the needs of each party based on the standard of living established during the marriage.

I bet right about now you’re thinking that you really screwed yourself by busting your ass and working all that overtime to give her the luxury of staying at home all day!

Yeah, we know...my husband was in the same boat. He'd provided the devil with a lifestyle beyond their means by working an unreasonable amount of overtime, and sacrificed all of his limited free time to give it the luxury of being a stay-at-home wife and mother (even though they didn't have any kids, and it wasn't even pregnant when it quit her job to sit on its ass all day).

So, do you want the good news? Take a look at this California Court of Appeal decision:

In re the Marriage of RICHARD and BARBARA SIMPSON, No. B048099, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION SEVEN, February 13, 1992, Decided: “After dissolution, a family may be entitled to be supported at what would have been a reasonable standard of living ... given what [Husband] would have earned had he worked at a reasonably human pace." … They are not entitled to continued guaranteed support at a standard of living which existed only because the supporting spouse ‘worked excessive hours during the marriage.’”

This means that the court can NOT base spousal support on the crazy overtime you worked during your marriage...and you've got the Appeallate Court decision to prove it!