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April 17, 2018 by Alice P. Cheng

Earning Capacity and its Role in Determining Child Support

What happens when one spouse in a divorce is either earning below their earning capacity (sometimes referred to as "underemployed"), or is unemployed? Generally speaking, California courts expect both spouses to contribute to their cost of living. This is especially true if the parties have children. However, a number of exceptions and considerations apply. In this blog we analyze the role of earning capacity in relation to child support. The topic of spousal support requires a separate discussion.

A review of California Family Code §4053 will tell you a few things: In California, a parent's first and principal obligation is to support his or her minor children according to the parent's circumstances and station in life. Both parents are mutually responsible for the support of their children. The financial needs of children should be met through private financial resources as possible, and orders must ensure that children receive fair and sufficient support. Child support is determined based on a guideline formula. So far, all of these concepts seem reasonable. However, what if there is a party who is not working? How does the Court ensure that both parents are supporting their children?

The Court has discretion to consider a party's earning capacity instead of the parent's actual income, consistent with the best interests of the supported children. Family Code §4058(b). In order to do so, the Court will need to examine a number of factors to determine whether the parent has the ability and opportunity to work.

The "ability to work" factor relates to a party's age, occupation, skills, education, health, background, work experience, and qualifications. The "opportunity to work" means that a parent has an opportunity to work if there is a reasonable likelihood that a party could, with reasonable effort, apply his or her education, skills, and training to produce income. Opportunity is not limited to obtaining a job to work for someone else; the Court may also consider opportunities for self-employment.

If either ability or opportunity to work is absent, then earning capacity may not be considered. The Court may impute income to a parent if a parent is unwilling to work despite having the ability and opportunity to do so. Imputing income is to insert a certain level of income into the child support guideline calculator, even if that is not the amount being earned. The burden to prove earning capacity is on the party urging the Court to consider it. In other words, the spouse asking the court to impute income must use competent evidence to convince the judge.

While sometimes earning capacity can be proven using evidence of prior earning capacity (old W-2s, paychecks, and the like), this can be very tricky. Another possibility is to ask the unemployed/underemployed spouse to be examined by a vocational evaluator. The purpose is to complete an assessment of the party's ability to obtain employment based on the party's age, health, education, marketable skills, employment history, and current availability of employment opportunities. The focus is on a party's ability to get a job that would allow the party to maintain himself/herself at the marital standard of living. California Family Code §4331(a).

This is an area that can be full of far-reaching consequences for both spouses. To explore your options related to you or your spouse's employment and earning capacity, please contact our office for a consultation.

March 20, 2018 by Alice P. Cheng

The Family Residence - Who Stays and Who Goes?

When a married couple decides to separate or divorce, the question is often asked: who stays and who goes?

The answer depends on a number of different factors. One of the most important questions is whether the parties have children and whether one party bears the primary responsibility for caring for the children. Another important factor is whether a domestic violence restraining order is in place. Other important questions to ask is whether one party owns the house as his or her separate property. If the property is rented, are both names on the lease? If the house is jointly owned, the parties must also ask themselves whether one party will be better able to afford the upkeep of the property.

Depending on the rental market in the area and the cost of upkeeping the house (mortgage, property taxes, insurance, etc.), there may be other financial consequences that result. We will discuss these financial consequences in a separate post. Furthermore, moving out can affect other areas of the divorce, such as child custody and visitation.

Given the high stakes at hand, family litigants should always consult an attorney. Even if both parties are committed to settle their matters amicably, each litigant should fully understand their rights and responsibilities before reaching any agreements. Contact us today to set up a consultation.

March 9, 2018 by Alice P. Cheng

Changes with Family Court Services Mediation in Contra Costa County (read on if you have children)

If you have a divorce matter involving minor children or a parentage matter, you should be aware that Family Court Services in Contra Costa County has changed their mediation model effective March 2018.  When either party files a request with the court seeking child custody or visitation orders, the parties are ordered to attend mediation.  Mediation sessions, except for the most serious of matters, will now be confidential.  This means that the parties will be encouraged to reach an agreement regarding child custody and visitation during mediation, but if an agreement cannot be reached, then no recommendations will be provided to the judge.  The judge will instead decide on the matter at a hearing instead.

This is a very significant shift from the mediation model previously used in Contra Costa County. The potential pros and cons of this system, as well as other options, must be carefully considered in your case planning.

For a brochure on the changes in Contra Costa, please visit

As of this blog post, Alameda County continues to utilize a recommending model.

The attorneys at Wapnick Family Law are prepared to assist you in addressing your child custody and visitation issues. Contact us today for a consultation.

January 4, 2018 by Alice P. Cheng

Free Shuttle to Hayward Hall of Justice

Alameda County is now offering a free shuttle from Hayward BART to Hayward Hall of Justice.

More information here:

December 27, 2017 by Alice P. Cheng

Deductibility of Spousal Support (or "Alimony")

Did you know that the recent tax overhaul affects the way that spousal support is treated by the IRS? The Tax Cuts & Jobs Act of 2017 included a repeal of the alimony tax deduction.

Currently, spousal support is deductible by the payor spouse, and treated as income to the payee. This type of income shifting sometimes results in the maximization of dollars, where a payee spouse would be able to claim the support payments as income at their (presumably) lower tax bracket, while the payor spouse would be able to lower their taxable income by deducting the payments.

For agreements executed after December 31, 2018, the payor spouse cannot deduct the alimony payments, and the payee spouse will not need to list the payments on their return. This includes support modifications that take place after December 31, 2018. Spouses may have an incentive to resolve their issues in 2018 to before the repeal takes effect.

What about California's Franchise Tax board? How will the FTB treat spousal support? Currently, alimony and similar payments from a spouse or former spouse are taxable to the payee in the year received. The payor may take a deduction for these payments so long as certain requirements are met. It is unclear whether the California legislature will make any changes to California law considering the changes in the federal law.

At this stage, it is unclear how the difference in California versus federal tax laws will affect payee or payor spouses. Many unanswered questions remain - stay tuned.

December 4, 2017 by Tracey C. Wapnick

Wapnick Family Law Attorney Honored with Distinguished Service Award

Please join us in congratulating our associate attorney, Alice P. Cheng, for receiving the Distinguished Service Award by Alameda County Bar Association (ACBA) for her work with the Barristers Section. Alice has been a member of the ACBA Barristers Board since 2015. She has served as the secretary, vice chair, and chair. She will serve again as the chair for 2018, and will continue in her role as an ex-officio member of the ACBA Board of Directors. Alice also regularly volunteers for Volunteer Legal Services Corporation (VLSC)'s pro bono programs, including CLASP, family law day of court program, and the Oakland family law clinic. The award recipients will be honored at the 2018 Installation and Distinguished Awards Dinner on January 25, 2018. We are very proud of Alice's contributions to our legal community!

More information about the Installation and Awards Dinner here:

Distinguished Service Awards

November 10, 2017 by Alice P. Cheng

Mandatory Waiting Period for Divorce

We are often asked, "how long will it take for my divorce to be finished?" Did you know that California has a mandatory waiting period of six months plus one day? This means that the termination of your marital status cannot happen any sooner than that time frame. While it is possible to reach an agreement on all issues with your spouse sooner than the six months plus one day time frame, it means that you will remain married until the termination date arrives.

Other factors will affect the time frame for your divorce. This includes the complexity of your case, and the likelihood you will be able to reach an agreement with the other party. The more acrimonious the relationship, the more difficult it will likely be to settle your matter. Another considerable factor is the lack of funding in our public courts. Family law courtrooms are often overcrowded with heavy caseloads. As a result, you may experience a significant delay in obtaining hearing dates, especially if your matter must proceed to a court trial due to an inability to settle.
These are issues that our attorneys anticipate and are prepared to help you navigate. A consultation with one of our attorneys will provide you with a reasonable expectation as to the timing and complexity of your matter. Contact us today.

October 19, 2017 by Alice P. ChengCLASP Volunteering

Our attorneys volunteered at the Alameda County Bar Association/Volunteer Legal Services Corporation's Community Legal Assistance Saturday Program (CLASP). It is a legal clinic that is held the first Saturday of each month at the Alameda County Law Library. We joined volunteer attorneys from many practice areas, including immigration, real estate, employment, personal injury, and bankruptcy. Together, we assisted many self-represented litigants in navigating their family law matters. The attorneys of our office also regularly volunteer at the courthouse and at other family law clinics. As individuals and as a firm, we are committed to furthering the goal of ensuring equal access to the justice system.

July 7, 2016 by Alice P. Cheng

We've moved!

We have recently moved our offices from Oakland to Walnut Creek.  We are now located at 101 Ygnacio Valley Road, Suite 201.  Our office is very easily accessible by car and by BART.  Please call our office today for more information.

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