Frequently Asked Questions About Spousal Support in Temecula, CA
Spousal support is one of the more bitterly contested issues in family law cases, along with child custody matters. People do not like to pay spousal support to their soon to be ex-spouse. Spousal support may be litigated during a divorce, legal separation or even a nullity case, at the conclusion of the divorce or legal separation, or anytime after the conclusion of a divorce or legal separation case so long as the court has retained the power to order spousal support. For more information about spousal support, click here.
Can the court order spousal support or alimony during an annulment/nullity case?
Yes. The family court has the distinct authority to grant a request for temporary alimony 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.
Does the court discriminate based on gender when ordering spousal support?
The family law judges in Hemet, California (which serves Temecula residents) are not allowed to discriminate based on gender for any issue involved in a divorce or legal separation case, including when spousal support is at issue. The United States federal law as well as California law ensures that biases regarding gender is to be avoided. Additionally, our partners have sat as Judge Pro Tem for the Superior Court in California, and as a result they were required to participate in training and ethics to eliminate bias based on race and gender. All judges sitting in courts throughout California are required to participate in this training. Notwithstanding this required training for judges, they are human and natural bias or discrimination may play a role in their decision-making. It is helpful to hire a lawyer that knows the judge’s tendencies with respect to ordering spousal support before litigating a case.
How much spousal support will I 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 alimony during a case you are asking for temporary alimony and the court will balance your needs with your spouse’s ability to pay. The court will use a spousal support calculator to determine the proper amount of spousal support, although the court is not bound to follow exactly what the calculator dictates. The calculator attempts to portion net income equally among the parties. Permanent alimony is determined at the end of a case, and depends on the court’s considerations of the factors set forth in Fam. Code 4320. For the bullet list of the factors, click here. The court is specifically not allowed to rely on the spousal support calculator to determine permanent spousal support.
How long will I have to pay spousal support for?
The length of time a spouse may be required to pay alimony 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 (see Fam. Code 4336) unless the parties agree that the court should not retain that power. 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 alimony 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 (see Fam. Code 4320(l)). If a couple was married for four years for example, the presumption is support should be paid for two years at a maximum. Second, the facts and circumstances involved in the case may determine how long spousal support in Temecula, CA is ordered for. Here are a few examples. Suppose a couple were married 25 years and the wife was a homemaker. It is likely that the husband will be paying spousal support for a very long time. Or suppose a couple was married for 12 years and the wife was the primary earner over the course of the marriage, but the husband had been attending medical school and is about the graduate. The likelihood that spousal support will be paid by the wife to the husband for any length of time is not very high.
Is spousal support taxable?
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 may be taxable income to the recipient and tax deductible to the person obligated to pay spousal support for state tax purposes. Spousal support is no longer tax deductible for federal tax purposes.
Can I obtain spousal support on an emergency basis?
We often see cases where spouses separate from one another and 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 in court. In Riverside County, the procedure to address this problem usually involves the prompt filing of a divorce case along with a Request for Order for temporary alimony. A Request for Order is a “motion” where the person asks the court to make some type of temporary order, in this case for alimony, and a hearing date is set. 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. As you might suspect, the court generally does not appreciate it when one spouse completely cuts off the other spouse from having money to live and pay bills, and sanctions under Fam. Code 271 may be appropriate in these circumstances.
Can the Riverside Family Court modify a permanent spousal support order?
In most circumstances the answer is yes. 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. However, there must be proven some change of circumstance warranting modification, such as 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. Only the parties can agree to modify the amount.
How is self-employment income treated in calculating alimony?
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 (“C” or “S”), limited liability companies, partnerships and limited partnerships to name a few. The spouse may receive a salary, distributions, or there may be income that is held within the business called “retained earnings”. 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. During the 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. Almost universally, 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. In some rare circumstances, a spouse’s claim of self-employment income will be equal to what the court finds.
What happens when a support recipient remarries?
There are several “automatic” ways spousal support ends 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.
What happens to spousal support if one party cohabitates with someone after a spousal support order is made?
The California Family Code 4323 states that 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. In simple terms, if the recipient of spousal support begins cohabitating with a boyfriend or girlfriend, or fiancé, there is a presumption that the support recipient’s needs for support are reduced. The support obligor can file a motion to reduce, limit or terminate spousal support in such a case.
When would the presumption that spousal support should decrease upon cohabitation be rebutted?
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.
If there has been domestic violence, does that effect spousal support?
Yes. This issue has been the subject of several recent changes in the law. First, 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”. Second, 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.
What is a “Gavron” warning?
Family Code 4330(b) states, “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.” This “warning” to the spouse that will receive spousal support is a codification of a warning that was issued in a case called Gavron. 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.
What happens with spousal support when my child support payments run out?
It often occurs in divorce and legal separation cases that child support is ordered along with spousal support. Naturally, if child support is being paid from one spouse to the other, the amount of spousal support that would otherwise be paid is reduced. When child support ends by operation of law (e.g. when a child emancipates), the person that receives spousal support may petition the court to increase the amount of spousal support. Family Code 4326 specifically authorizes such a “post-judgment motion”. For more information about spousal support, contact our office today. We are conveniently located in Temecula and our managing senior attorney, Justine Marren, is able to meet with you immediately.