California and some other states offer legal separation and dissolution of marriage. For either, one person must file a petition in the court. If you have children and/or you need spousal support, you may apply to the court for temporary support only if you filed for divorce, legal separation, annulment of your marriage or if you have a protective order against your spouse. During the divorce trial, the court may revisit the temporary support orders. At the very least, the support orders will become permanent. The support orders may change if your income or your spouse’s income changed since the court entered the temporary order. If you are ready to file for a legal separation or a divorce, contact a spousal support attorney Los Angeles or in your location.
Spousal Support Factors
Unlike child support, most states, including California, do not provide a computation for spousal support. However, some counties may have local rules that do provide a computation. For example, Los Angeles uses the Santa Clara County’s local guideline for computing support, which calculates payments by subtracting 50 percent of the net income of the payee from 40 percent of the net income of the payor, and then adjusting for tax consequences. If the payor has to pay child support, the 50 percent is after child support is deducted. Santa Clara’s discretionary policies also apply.
In addition to the computation, courts in most states take certain factors into consideration when determining whether a spouse should receive alimony, including:
- Whether both parties are able to maintain the standard of living they were used to in the marriage. This includes whether the payee has marketable skills and there is a market for those skills, whether the payee needs to get more education to make his or her skills marketable and the cost of education necessary to allow the payee to make enough to support himself or herself.
- The amount of education each party has, and whether either party needs more education to sustain the standard of living.
- The ability of the payor to pay spousal support. The court will look at the payor’s earning capacity, assets, and earned income. It will also consider what the payor may earn in the future. The court also takes the payor’s standard of living into consideration.
- Whether the payee needs spousal support to maintain the standard of living enjoyed during the marriage.
- The assets and liabilities of both parties after the assets and liabilities are divided, including the separate assets of each party. For example, if the wife is asking for spousal support and she received a substantial inheritance from her parents, the court counts the inheritance when determining the standard of living.
- The length of the marriage. Generally, the court may order support for half of the length of the marriage. For example, if you were married for six years, the court may order spousal support for three years. At the court’s discretion, it may order the payor to pay for a longer or shorter amount of time, depending on the marketable skills of the payee.
- Additionally, California law considers a marriage to be long term after 10 years of marriage. Once you have been married 10 or more years, the court has the discretion to enter an order for an indefinite period of time.
- The ability of the payee to get gainful employment without interfering with the best interests of the minor children.
- The parties’ ages and their health. If the payor has a disease that could be life threatening, he or she may not have to pay spousal support since his or her health costs may preclude it.
- Whether domestic violence has been documented in the marriage, whether against the spouse or the minor children. In considering domestic violence issues, the court will also look at cases where the accused pled nolo contendere, a spouse suffered emotional distress, the history of the violence, and/or whether the courts issued protective orders in the past or there is a current protective order. Also, if the person asking for support caused the payor physical or emotional abuse, the court will take that into consideration when determining support.
- The tax consequences of ordering spousal support. However, as of Dec. 31, 2018, the IRS no longer taxes alimony from the payee as income. The payor is no longer able to deduct alimony. Thus, the payor now pays the taxes on the alimony, even though that income is not his to spend.
Only the federal tax laws have changed. For California taxes, the payor may still deduct alimony and the payee must still claim alimony as income. Other states may also require the parties to claim alimony on their state returns.
- The hardships each party has. Difficulties may include locating childcare, getting a vehicle, health issues or even the ability to work outside the home.
- How long it might take the payee to become self-supporting. This does not mean that the payee may take his or her time getting an education or getting work.
- Whether one of the spouses has a criminal conviction for being abusive to his or her spouse or children. The court also looks at the emotional status of the spouse or children who alleged domestic abuse.
The court may look at any other factor in the divorce or legal separation that may make a difference in the equality of living up to the standard both parties enjoyed during the marriage.
Generally, all issues that the parties cannot agree upon are heard at the final hearing. However, if a divorce or legal separation takes a long time, a spouse may need support during the pendency of the divorce or separation action. A party may motion the court for child support or spousal support. The court may enter an order for temporary support, especially child support.
In some cases, the parties may want to reconcile. If this is the case, the court may suspend (stay) the divorce or separation proceedings for up to 30 days. The court may also order temporary support during the stay, even if the parties do not request it.
Spousal Support Arrears
If you fall behind in alimony payments, state statutes often require you to pay interest on the amount in arrears. For example, California law mandates charging you 10 percent interest per year. Additionally, the court may take other actions, including holding you in contempt of court if it finds that you are willfully not paying your support. If your work circumstances have changed or you had another unexpected change of circumstances that prevents you from paying spousal support, you may file a motion with the court to lower the support payments or to stop the payments. You must continue paying support payments until the court enters an order changing those payments. If you do fall behind in support, your support payments will most likely include some extra to cover the arrearages.
On the other hand, if you find that your spouse has run into a windfall such as selling property that was awarded to her in the divorce and the equity in the home allows her to live better than you, or if your spouse’s parent died and left him a substantial amount that makes his standard of living equal to or better than yours, you may petition the court to reduce or eliminate spousal support due to a significant change in circumstances.
Collecting Late Spousal Support
If your spouse is also paying child support, your attorney may ask the court for a garnishment order. When your spouse is only paying spousal support, you will not be able to use the local child support agency to help collect spousal support. If your spouse is late with any support payments, contact a spousal support lawyer as soon as possible.
When Long-Term Spousal Support Ends
In most cases, long-term spousal support ends only when the court enters an order stopping the payments. However, if your ex-spouse or partner dies, remarries or registers a new domestic partnership, you will no longer have to pay support. Do not stop paying the support without notifying the court of the reason.
You will have to show proof of the death or new relationship. When you contact your divorce attorney about stopping support, bring a copy of the death certificate, marriage certificate or partnership registration documentation. With these documents your attorney will be able to file it with the initial request to stop spousal support payments. If you cannot get a copy of the required documents, your divorce attorney can request them for you.
Contact a Divorce Lawyer
If you are ready to file for divorce or legal separation; or if you have been served with divorce or legal separation papers, contact a divorce lawyer for a consultation as soon as possible. Divorce law may be complicated in some areas, including spousal support laws and division of assets. Make sure your rights are not violated and that you get your fair share of marital assets by scheduling a consultation today.
Carla Hartley has worked in the legal field for well over ten years. She has worked every position in a law firm, from receptionist to law clerk to managing attorney for the firm. An experienced litigator, Ms. Hartley works aggressively to keep her skills, abilities, and knowledge base at the cutting edge of family law.