A California Family Law Court may use a computer program or guideline to calculate temporary spousal support amount before the trial but, the court is not allowed to use the Dissomaster in calculating permanent support. In re Marriage of Olson (1993) 14 Cal.App.4th, a permanent spousal support order based on the Dissomaster was reversed because of the failure to consider all 4320 factors.
The Law Offices of Edward Misleh, APC is a Sacramento law firm, located in Sacramento, California that practices family law and represents clients in Sacramento, California and clients in Northern California with services they need and deserve when addressing support, support termination, and support modifications. Call now our Lawyer Hotline. Call now 321-951-9164.
Spousal support is one of the more bitterly contested issues in family law cases; i.e. divorce proceedings. People do not like to pay support to their soon to be ex-spouse. Support may be litigated during a divorce, legal separation or even a nullity case, at the conclusion of the divorce or legal separation, or any time after the conclusion of a divorce or legal separation case so long as the court has retained jurisdiction to order 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 support.
In a proceeding to modify or terminate 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 support.
The court can order spousal support or alimony during an annulment (nullity) case. The family law court has the authority to grant a request for temporary spousal support during the pendency of a nullity case. The reason is because it is not certain that the nullity will be granted and the court may ultimately only grant a divorce or legal separation.
Awards to Either Spouse
The family law courts are not allowed to discriminate based on gender for any issue involved in a divorce or legal separation case, including awarding of support. The United States federal law as well as California law ensures that biases regarding gender is to be avoided.
The Amount You Could Receive
It depends on the facts and circumstances of your case. First, the court treats temporary spousal support differently than permanent spousal support. So if you are requesting support while your divorce case is in litigation, you are asking for temporary spousal support and the court will balance your needs with your spouse’s ability to pay. The court will use a support calculator to determine the proper amount of spousal support, although the court is not bound to follow the results, courts routinely adopted the calculations when awarding temporary spousal support. Permanent spousal support is determined when your case is finalized and depends on the court’s considerations of the Family Code 4320 factors. The court is specifically not allowed to rely on the spousal support calculator to determine permanent spousal support.
How Long Will You Pay
The length of time a spouse to pay spousal support depends on a wide variety of factors. First, the length of marriage is of key importance. For marriages over ten years, the court will retain jurisdiction forever to order spousal support, as governed by Family Code 4336, unless the parties agree that the court should not retain jurisdiction. Importantly, despite the fact that the court will retain jurisdiction forever to order spousal support when a long term marriage exists (i.e. a marriage over 10 years), the Family Code specifically allows the payor of spousal support to request the court terminate its power to order spousal support later on by bringing a post-judgment modification proceeding. For marriages under 10 years, there is a rebuttable presumption that alimony should be paid for one-half (1/2) the total length of marriage as governed by Family Code 4320(l). Second, the facts and circumstances involved in the case may determine how long one spouse will pay spousal support.
As a general rule in California, spousal support lasts for approximately half the length of your marriage. If you were married, therefore, for eight years, then after about four years the support should terminate. You should file an Order to Show Cause with the court to be heard on your request to terminate spousal support. Your Order to Show Cause should include how your ex-spouse has become self-sufficient by getting a job, or other reasons why support should be terminated.
If your marriage lasted longer than ten years, it is probably going to be considered a “long-term marriage” by the court. This means that spousal support can go on indefinitely. In recent years, however, courts have been less willing to allow spousal support to continue forever, so if you have paid for half the length of the marriage, you should at least try to terminate the support.
A common occurrence, is when the spouses separates from one another, the employed spouse “cuts off” the unemployed spouse from access to any community funds or income. These circumstances present an immediate need to file papers for a divorce along with a Request for Order for temporary spousal support. A Request for Order is a “motion” where the person asks the court to make some type of temporary order, in this case for spousal support. Additionally, we often file an “ex parte application” to ask the court to grant an expedited hearing date so that the person in dire need of spousal support doesn’t have to wait a month or two for a hearing date. The court generally do not look favorably on a spouse who completely cuts off the other spouse from having money to live and pay bills, and sanctions under Family Code 271 may be appropriate in these circumstances.
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. So long as the court has the power to order spousal support and the current spousal support order is not “non-modifiable”, the court may enter a 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. The change of circumstance could be a change of employment for either spouse, material change in the income of either party, loss of health insurance, or other similar types of changed circumstances. If parties agree that an award of alimony is “non-modifiable”, case law specifically prohibits the court from modifying the amount under any circumstance.
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.
Effects of 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.
Effects of 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.
Self-employment income usually presents a very difficult and interesting analysis in relation to spousal support. Spouses that own their own businesses often mix personal and business expenses, and tax returns do not show the full picture although they are a good starting place. There are many different types of businesses that a person may own or have an ownership interest in, including sole proprietorships, corporations, limited liability companies, and partnerships. The spouse may receive a salary, distributions, or other forms of compensation which may be considered to be income. Alternately, income called “retained earnings” may be held by the business. Further, the spouse may receive certain benefits, such as gas or vehicle allowance, company credit that they use personally, or retirement account contributions that may all be “added back” to income for support purposes. The key to every case where a spouse is self-employed, or otherwise controls his or her pay through their employment even if they do not technically “own” the company, is to gather the right information before or during the divorce case.
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.”
Obtaining Information to Determine Income
During your divorce, your attorney has the right to conduct discovery to gather information relating to the self-employment of the other spouse, including demanding documents, sending subpoenas, taking depositions, and so forth. Showing the court the proper and relevant information concerning self-employment, business and personal income is of key importance. As often seen, a self-employed spouse’s claimed income is significantly lower than what a court will find to be the person’s income if they have all the relevant information.
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.
It essentially means that an ex-spouse is not entitled to sit back, relax and refuse to make a good faith effort to become self-supporting after a permanent support order is entered by the court. As noted, this warning is discretionary. Sometimes the court will even make this order during the pendency of a divorce case.
Non-earner or Low-earner Spouse
Pursuant to the California Family Code, the non-earning or lower-earning spouse has the obligation to become self-supporting as soon as reasonably possible, even if that spouse has spent many years raising children. You can ask the judge (in your Order to Show Cause or even just in your support hearing) to make an order that the lower-earning spouse seek work or make efforts to become employed. This applies to child and spousal support. The orders the court will make vary, but in the extreme case, the court can require the job seeker to submit documentation that he or she is applying to up to ten jobs per week and following up on the applications. Support can ultimately be reduced if the job seeker fails to comply with the court’s orders for a job search.
Spouse Refuses to Work
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.
You can request that the court order a vocational evaluation, which is an evaluation by an expert to determine how much your ex-spouse may be able to earn and what would be appropriate fields of employment. This can be expensive, but effective in convincing the court that your ex-spouse is capable of working. If you can convince the court that your ex-spouse should be working, should be working more, and/or should be earning more, then you can ask the court to impute income to him or her. Your support order in this case will be calculated as if your ex-spouse/co-parent were earning to their potential.
Effects of Domestic Violence
The occurrence of domestic violence during marriage is a factor that the court must consider under Family Code 4320(i) when determining permanent spousal support, so long as the domestic violence is “documented.” Family Code 4325 states that in any case where a spouse is convicted of domestic violence against the spouse within the past five years, there is a rebuttable presumption that the perpetrator spouse is not entitled to receive spousal support.
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.
Unlike child support, which is not taxable income to the recipient and is not deductible as income to the person obligated to pay child support, spousal support is taxable income to the recipient and tax deductible to the person obligated to pay spousal support. There are two general conditions to the rule that spousal support is tax deductible to the person obligated to pay. First, there must be a valid court order requiring the payment of alimony. Second, the person must actually pay the spousal support amount.
This is changing under the tax revision plan proposed by President Trump. As on 2019, spousal support will no longer be a deduction for the paying spouse.
Remarriage by the Recipient
There are several “automatic” ways spousal support terminated under California law. First, if a support obligor or recipient dies, spousal support will terminate. Second, if a specific date is reached for which the parties agreed or the court ordered spousal support to end. Third, when the recipient of spousal support remarries, spousal support will no longer be payable to that spouse unless the parties specifically agreed in their divorce Marital Settlement Agreement that spousal support would continue to be paid even upon remarriage.
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.
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.
Under California Family Code 4323, there is a rebuttable presumption affecting spousal support when the recipient of support begins cohabitating with another person where it is not a bona fide “roommate” situation. If the recipient of spousal support begins cohabitating with a boyfriend or girlfriend, or fiancée, there is a presumption that the spousal support received by the recipient should be reduced. The support obligor can file a motion to reduce, limit or terminate spousal support in such a case.
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.
Rebutting the Presumption to Reduce Support for Cohabitation
A recipient of spousal support may fight a request to terminate or reduce spousal support even though they are cohabiting with another person. For example, suppose the recipient spouse shows evidence that they and their new relationship do not share any expenses and pay for everything separately; in such a case, the presumption would be rebutted because the financial circumstances of the supported party have not changed.
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 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.”
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 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.
You can ask for a spousal or partner support order once you file (start) your case. You can get temporary orders for spousal or partner support while you are waiting for the final judgment in your case. To set up a support order, you or your spouse/partner must request an order from the court. How to do this depends on whether you already have a family court case that involves you and your spouse or domestic partner; or, whether you are starting a case for the first time.
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 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 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 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 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 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 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 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 support should you be forced into early retirement.
Q: How does my raise affect 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 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 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 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 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 support?
You can have your payments for 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 support?
The assets your former spouse receives are considered and often used to argue for an order to limit or deny support.
Q: What effects does filing for bankruptcy have on support?
Under U.S. Federal law, spousal support obligations are generally non-dischargeable in bankruptcy.
Q: How does payment of support affect tax filings?
The paying spouse can claim a deduction for 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 support?
You can request a reduction in support based on the support your former spouse is receiving from their live-in friend.
Q: What happens to support payment when my former spouse remarries?
Your obligation to pay support ends upon your former spouse’s remarriage.
CALL NOW TO MAKE AN APPOINTMENT
For more information on support orders, click on one of the following links: