Spousal support, also referred to as alimony, is the legal obligation for one spouse to provide financial support to the other spouse during separation and upon divorce.
Purpose of Spousal Support
The purpose of spousal support is to enable the supporting party to become self-supporting. Often, a supported spouse has the expectation that they are entitled to support and that it should be forever. The receipt of spousal support and a share of the community property in a divorce does not relieve the supported spouse from their duty to become self supporting and from being accountable for their financial future and the continued need for spousal support.
In a proceeding to modify or terminate spousal support, the supported spouse’s lifestyle, actions, and financial decisions, all will be scrutinized by the supporting spouse (or their attorney) and the court. In addition to the analysis of their employment capabilities and receipt of other income, a supported spouse’s investment strategies will be analyzed to determine if they have reasonably managed their share of any community property received. Only after the supported spouse proved a need will the court order an increase or continuation of spousal support.
Temporary and Permanent Support
Temporary support is ordered by a court during your divorce proceeding while permanent support is ordered at the end of your divorce case. A court is allowed to use a computer program, called Dissomaster or X-spouse, to determine temporary support. The court cannot use this computer program to determine permanent support. The only factors a court considers for temporary support is the supported party’s needs and the supporting party’s ability to pay. There are more than a dozen factors the court considers when arriving at a figure for permanent support.
California temporary spousal support is awarded to one spouse during the divorce process. The support is awarded so that they can live in the manner they were accustomed to during the marriage. California temporary spousal support can be awarded to a husband or a wife. The support continues pending disposition of their divorce. A California temporary spousal support order is an attempt by a California court, pending trial, to allocate family income equitably between parties. It considers their individual incomes and expenses. The amount awarded as California temporary spousal support is to maintain the status quo of the parties until trial. California temporary spousal support can be determined using a computer-based program.
Permanent spousal support is support awarded after temporary support has been awarded in your divorce. While temporary spousal support is “calculated” using a computer program, permanent spousal support is not “calculated” since the court are not allowed to use a calculator or computer program. The court is required to list and consider each and every factor in California Family Code section 4320 to determine the amount and duration of spousal support, if any.
In contrast to California temporary spousal support, California permanent spousal support (also known as long term spousal support) is intended to provide financial assistance to the supported spouse. The amount awarded is determined by the financial circumstances of the parties after their dissolution and the division of their community property. In determining permanent spousal support, a court must consider certain factors as set out in California Family Code § 4320. A judge cannot use a computer-based temporary spousal support guideline figure, even if used only as reference point, but must consider all the factors found in the California Family Code.
Factors taken into consideration when deciding permanent support vary from those when determining temporary support. The Court uses a computer-based program to come up with a temporary spousal support figure. This is called guideline support and is meant to only be temporary.
A licensed attorney will lay out the factors as set out in California Family Code § 4320 to help the Court determine the need for permanent spousal support. Temporary spousal support is always more than permanent support. Support is meant to be awarded to help each spouse maintain the standard of living enjoyed during the marriage.
California Family Code section 4320 Factors
A California Family Law Court will take into consideration the following factors to determine if a party should receive permanent spousal support:
- The earning capacity of both parties to maintain the standard of living established during the marriage;
- The marketable skills of the party to be supported and their ability to engage in gainful employment considering any care for dependent children.
- The extent of time the supported devoted to domestic duties.
- The extent to which one party contributed to the other party’s attainment of an education or training.
- The obligations and assets of both parties.
- The duration of the marriage.
- The age and health of the parties.
- Evidence of any history of domestic violence or criminal convictions.
- Any hardships affecting either party.
California “Ten-year Rule”
Marriages of 10 years or more are considered marriages of long duration. As such the court is not allowed to set a definite termination date for spousal support at the time of the trial. While the court cannot terminate spousal support by a certain date, they can set a date for spousal support to be terminated unless the supported spouse applies to extend the support on or before that date. In marriages of less than 10 years, spousal support is presumed to be no longer in duration than half the length of the marriage.
You can request to change a spousal support modification order if you can show that there has been a “change in circumstances” since the spousal support order was made. The supported party no longer needs support or the supporting party can no longer afford to paid support.
After a judge makes a spousal support order, you or your former spouse may need to change the order and would seek a spousal support modification. If you are in this situation, you have to show that there has been a “change in circumstances” since the spousal support order was made. This means something significant has changed since the spousal support order was made.
California Spousal Support & Retirement
You are entitled to retire at age 65 and cannot be required to work to support your spouse beyond that age. Additionally, if you’re forced into early retirement, you may be able to convince a court that you should not have to continue paying support.
Raises and Bonuses
The court cannot consider your increased post-separation earnings as a basis for awarding support beyond that which is justified by the marital standard of living.
Job Loss: You should be able to receive a temporary abatement of support if you have been involuntarily terminated or had your income reduced. You may be able to receive a permanent spousal support reduction or termination if you are unable to obtain comparable employment and have to take a pay cut.
You should be able to lower your spousal support obligations if your business has been affected by the recession and you are earning less. And, under California law, you can only be required to work a “reasonable work regimen.”
Duty To Become Self Supporting
In California, the duty to become self supporting is the obligation a support spouse has to become self-supporting within a reasonable amount of time after divorce.
California Family Code Section 4330 states: (a) In a judgment of dissolution of marriage or legal separation of the parties, the court may order a party to pay for the support of the other party an amount, for a period of time, that the court determines is just and reasonable, based on the standard of living established during the marriage, taking into consideration the circumstances as provided in Chapter 2 (commencing with Section 4320); (b) When making an order for spousal support, the court may advise the recipient of support that he or she should make reasonable efforts to assist in providing for his or her support needs, taking into account the particular circumstances considered by the court pursuant to Section 4320, unless, in the case of a marriage of long duration as provided for in Section 4336, the court decides this warning is inadvisable.
You can obtain a vocational assessment and have to court consider lowering or terminating support if your ex-spouse has not sought out employment. The court can also assign your ex-spouse a fictional income if you can prove they are purposefully avoiding employment despite the availability of positions consistent with their skills.
Disability claims for “stress” or “depression” can be reasons an ex-spouse claims they cannot return to work. An Independent Medical Evaluation can be court-ordered and a licensed vocational counselor can make suggestions as to what type of employment is available considering your ex-spouses’ limitations.
Division of Assets: If your spouse is awarded significant assets, or if you make significant equalization payments over time, this should be considered as a mitigating factor against spousal support.
Spousal support payments are generally tax deductible to the payor and taxable to the recipient.
The Family Home
A party who is in exclusive possession of the family residence is occupying community property which entitles the community to be reimbursed. Reimbursement is a fair rental value that exceeds the cost to maintain the premises. This is called a Watts motion and is not limited to solely a family residence. A similar motion can be made for a business or for reimbursement when payments are made after separation, with separate property earnings, towards community obligations that were incurred prior to separation.
California Family Code § 4323(a)(1) states that except as otherwise agreed to by the parties in writing, there is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabiting with a person of the opposite sex. It has no impact on child support obligations. Upon a determination that circumstances have changed, the court may modify or terminate the spousal support.
Support Reduction & Termination
You should go to court to have your support reduced or terminated if you ex-spouse earns more than you.
Your obligation to pay spousal support ends when your former spouse remarries. You may need to obtain an order terminating a wage assignment if there’s one in place.
Terminating Spousal Support
Spousal support is terminated by death, remarriage, or by a court order. A spouse is given support for a reasonable amount of time to become self-supporting. In marriages lasting less than 10 years, a reasonable amount of time is generally considered to be half the length of the marriage. In marriages that last longer than 10 years, a court will require the supported spouse to become self-supporting as soon as reasonably possible. California law does not require lifetime support and spousal support can be terminated at any time.
Spousal Support Orders
California Spousal Support Orders are orders granted to one party involved in a legal action. When a couple legally separates or divorces, the court may order one spouse or domestic partner to pay the other a certain amount of support money each month. This is called “spousal support” for married couples and “partner support” in domestic partnerships. It is sometimes also called “alimony.”
Payments of Spousal Support
After you get a spousal or partner support court orders, your former spouse or domestic partner must start making support payments to you. The court order will include a start date for the spousal or partner support.
In every case ordering spousal or partner support, the court will order that an earnings assignment (also called “wage garnishment”) be issued and served. The earnings assignment tells the employer of the person ordered to pay support to take the support payments out that person’s wages.
Spousal Support Questions
Clients often have many spousal support questions which they contemplated either before, during or after divorce. The following are answers to some of the most often encountered spousal support questions asked by our client. Be sure to contact our office should you have spousal support questions that were not answered in this post.
Q: What is California spousal support?
Spousal support is the term used for payments by one spouse to the other spouse and can be in the form of temporary spousal support or permanent spousal support.
Q: What is temporary spousal support?
Temporary spousal support are payments made to one spouse during and up to the finalizing of a court matter; most often a divorce.
Q: What is permanent spousal support?
Permanent spousal support is payments made to maintain the standard of living established during the marriage.
Q: What is alimony?
Alimony is synonymous to the term spousal support.
Q: Why do California courts award spousal support?
Spousal support in California is meant to bridge the gap between the time it takes for that spouse to obtain employment or resources that meet their cost of living needs. After divorce, one spouse is often left at a disadvantage due to the fact they are untrained or cannot obtain employment because they have been out of the workforce for such a significant amount of time. Spousal support allows them to maintain the established marital standard of living while they become self-supporting.
Q: Is spousal support awarded in all divorce cases?
Spousal support is determined by each spouse’s income and their ability to attain employment to become self-supporting. Spousal support is not awarded in all cases but can be awarded to either spouse should they need support to maintain the standard of living experienced during marriage.
Q: Why should I care about paying spousal support?
Spousal support is often the largest financial obligation you will incur as part of your divorce. It can last for extended periods and result in substantial costs which, if not paid, can be enforced through a contempt proceeding.
Q: When does a California court use the Dissomaster computer program to determine spousal support payments?
While a California court may use a computer program to calculate guideline temporary spousal support, the courts are not allowed to use the Dissomaster program in calculating permanent spousal support. The court must consider a number of factors before making an award for permanent spousal support.
Q: Does my spouse’s infidelities affect spousal support?
California is considered a no-fault state which means that the courts will not consider your spouse’s affair when determining spousal support payments. However, if your spouse is cohabitating, the court must presume she has a decreased need for spousal support.
Q: Should I avoid going to court because of the high cost involved?
You should always try to negotiate before taking action to litigate spousal support. However, beware that should you negotiate you will need to make sure any agreement addresses all aspects of spousal support.
Q: What is the California 10-year rule?
Marriages of 10 years or more are considered marriages of long duration in California. As such the court is not allowed to set a definite termination date for spousal support at the time of the trial. While the court cannot terminate spousal support by a certain date, they can set a date for termination. In marriages that are over 10 years spousal support is presumed to be no longer in duration than half the length of the marriage.
Q: Can I stop paying support when I retire?
In California, you are entitled to retire at age 65 and cannot be required to work to support your spouse beyond that age. You may be able to terminate spousal support should you be forced into early retirement.
Q: How does my raise affect spousal support payments?
A California court cannot consider your increased post-separation earnings as a basis for awarding support beyond that which is justified by the marital standard of living.
Q: Can I get spousal support payments reduced if my income is reduced?
If your employment has been terminated, by no action of your own, you can request the court issue a temporary to reduce spousal support. Should you be unable to obtain comparable employment and have to take a pay cut, you may be able to receive a permanent spousal support reduction or termination.
Q: Can I get spousal support payments reduced if I am an independent contractor or self-employed?
Should your business be affected and you earnings are reduced, you should be able to have your spousal support obligations reduced.
Q: How much do I have to work if I’m self-employed?
In California, you are required to work a reasonable work regimen which takes into consideration your particular abilities.
Q: Can a California court order me to pay my former spouse a percentage of any bonuses or overtime pay?
You can be required to make these payments but, unless there is an annual cap, any court order could end up providing your former spouse with more support than is consistent with the marital standard of living.
Q: How does a raise for my former spouse affect spousal support?
You can have your payments for spousal support reduced or terminated should your former spouse begin to earn more.
Q: Can I force my former spouse to work and become self-supporting?
You cannot get a court order to force your spouse to work but you can request a vocational assessment and request the court to consider lowering or terminating support if they have not sought out employment. The court can also assign income to your former spouse if you can prove they are purposefully avoiding employment despite the availability of positions consistent with their skills.
Q: What can I do if my former spouse claims to be disabled?
You can request that you former spouse submit to an Independent Medical Evaluation (IME). Once completed, you can then have it reviewed by a licensed vocational counselor who will make suggestions as to what type of employment is available for your former spouse.
Q: How does the marital assets and community property we divide affect spousal support?
The assets your former spouse receives are considered and often used to argue for an order to limit or deny spousal support.
Q: What effects does filing for bankruptcy have on spousal support?
Under U.S. Federal law, spousal support obligations are generally non-dischargeable in bankruptcy.
Q: How does payment of spousal support affect tax filings?
The paying spouse can claim a deduction for spousal support payments which are taxed as income to the former spouse.
Q: What effect, if any, does my former spouse’s new live-in friend have on spousal support?
You can request a reduction in spousal support based on the support your former spouse is receiving from their live-in friend.
Q: What happens to spousal support payment when my former spouse remarries?
Your obligation to pay spousal support ends upon your former spouse’s remarriage.
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