I live out of state. Dad lives in CA. Alameda County, CA, has jurisdiction. Child lives with me out of state. Dad wants (1) an offset (negative add on) to guideline child support due to transportation expenses and/or (2) for me to pay for half of the cost of his transportation for visitation. I understand there is a case, Marriage of Gigliotti (1995) 33 CA4th 518, holding that transportation expenses cannot be a negative add on for child support. I suppose that does not mean the court cannot order us to share the cost of transportation, but that would in essence reduce the child support. I'm a stay at home mom and with no income. His lawyer want to impute income upon me, but in reality it is my new husband that would have to pay for my ex's transportation costs. Please help.
Divorce / Separation Lawyer
In the Marriage of Gigliotti, which appears to be still good law as well as Family Code Section 4062. This case decision and statute would not be enabling in regard to your ex’s continued contribution to travel expenses. Could there be some other different variations in theory to present the claim, possible, not probable. The normal go on this is where people in your ex’s situation obtain contribution from individuals like yourself and where you voluntarily move out of the area and you are the reason for increased travel expenses and on that basis in most to the best I van recall negotiated resolutions and settlements you agree to pay the travel costs or a portion based on the fact that you are removing the child from the area where you and the ex resided and child resided.
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Family Law Attorney
Look up CALIFORNIA FAMILY CODE 4062. There is a column in the Dissomaster calculation that enables a "Hardship" for Travel Expenses. It is discretionary by the court. So yes... the Judge CAN order you to contribute toward the transportation expenses (they have the authority to do so, but it's up to the Judge to decide if he/she will/won't.)
Imputing income: This, too is discretionary. It depends on WHY you're a stay at home mom. Did you get laid off? Did you quit your job? IF you quit your job so you can be supported by your new husband & be a stay-at-home mom, then the court has the ability to impute income based on your new husband's earnings to the extent that they satisfy your monthly living expenses. Most courts will not impute more than your last earnings prior to quitting your job. This is a very tricky area because your ex also has the burden of proving a) That you have the ABILITY to work full time and b) the OPPORTUNITY to work full time. If you can establish that you've applied for jobs to no avail, then that rebuts his contention. To impute income, though, he would have to prove those factors: a - you didn't quit your job; b) you have the ability to work full time; c) you have the opportunity. Also... a good argument you can make is that the cost of daycare to pay someone to watch your children doesn't justify the income you earn. Now... if your last income was significant enough, that argument won't fly. But if you earned less than say $10/hour, for example... it may fly.
So there are a variety of factors that we Attorneys would need to know before we could advise you thoroughly.
This is a general answer and does not constitute legal advice. By answering this question, I am not creating an attorney/client relationship, and no such relationship will be created unless a representation agreement is signed by both you and me.