There are many considerations that must be made if you and your spouse are contemplating divorce. Separating finances, finding new living arrangements, and working out child custody are all factors that may arise from a divorce. For many people, deciding to end a marriage also comes with a hit to their standard of living—especially if their spouse has been the primary breadwinner. If you are facing the possibility of financial difficulty or are unable to support yourself fully in the wake of a divorce, you may be eligible for some form of spousal support.
The uncertainty that arises during a divorce can feel overwhelming. It can be difficult to navigate the legal process, especially when you are attempting to set yourself up for success after your marriage ends. As an Orange County family law firm for nearly twenty years, the Law Offices of Hollie A. Lemkin, APC, has extensive experience in helping our clients receive the support they need to sustain themselves for the next chapter of life. You handle the emotions and personal side of your divorce. We can manage the legal side and ensure you receive every asset you are entitled to.
Spousal support is also called alimony. It is the legal term used to define payments made to one spouse from the other following a divorce filing. It is intended to support the receiving spouse and maintain their standard of living. Spousal support is intended to last until the divorce is final or they can obtain a job or other means to support themselves. California’s state policy expects the divorced parties to become self-supporting within a reasonable time frame.
Spousal support can become a bitterly contested issue, as parties generally dislike paying their spouse alimony. Spousal support can be sought during a separation, divorce, or nullity case. However, this is not the only time spousal support can be pursued. It can also be sought when a divorce or separation is finalized, or even at any time after the conclusion of a legal separation or divorce, as long as the court retains the power to order spousal support.
California recognizes four possible types of spousal support:
The duration of spousal support depends on multiple factors, but one of the major ones is the duration of the marriage. The ten-year rule for spousal support is the determining factor for the duration of many spousal support cases.
There are exceptions to the general ten-year rule.
Even if there is not a specified end time for spousal support in the court order, there are some circumstances that trigger an automatic end to the support. If either the paying or receiving party dies, the spousal support payments will stop. The payments will also usually stop if the recipient remarries. The exception would be a marital settlement agreement that states the support will continue even upon remarriage.
If the spouses cannot agree on spousal support payments, and there is no marital agreement in place, the court will dictate the terms of the support. The duration of the marriage will play a significant role in determining alimony. However, it is far from the only consideration.
Different county courts utilize different alimony formulas to determine the temporary spousal support amount. Orange County generally uses the Santa Clara maintenance formula. This formula takes 40% of the net income of the paying spouse, minus 50% of the net income of the receiving spouse. For example, the paying spouse annually earns $120,000, and the receiving spouse annually earns $60,000. The formula arrives at a spousal support payment of $1,083 through these steps:
These values will be adjusted for tax consequences. The net income will not include any payments made for child support.
The determination of permanent spousal support is much more complex. There is no pre-determined calculation, and there are many more considerations. Factors considered for permanent spousal support include:
When spousal support begins, the payment is typically taken out of your paycheck with an earnings assignment. This order tells your employers to automatically deduct the payments from your paycheck. It also provides instructions on where to send them. If the order is only for spousal support, the payment will be sent directly to the spouse. If child support is also taken out of the paycheck, the money will be sent to the California State Disbursement Unit. They will then send it to the recipient.
Spousal support is court ordered. Serious consequences can arise if the payments are not made in full and on time. Fortunately, there is a way to alter spousal support if your circumstances change and you cannot meet the current ordered amount. It is important to note that both parties can petition for spousal support modification. However, the petitioning spouse must present evidence to prove the change in circumstances that would justify changing alimony payments. Potential reasons for spousal support modification include:
One or more of these situations may apply to your case. However, spousal support is still owed until a court order changes the payments.
Failure to pay spousal support, or alimony, can result in significant penalties. These penalties can include:
These penalties can have dramatic consequences for the payee of spousal support. If you are unable to make these payments, it is important to seek out an attorney. They can help you file a request that the support be modified or even stopped. If you are the receiving party, an attorney can help you enforce the court order. They can also help you seek a remedy for the lack of payment.
Spousal support may be considered tax-deductible to the paying party and taxable income to the receiving party for state tax purposes. This is different from child support, which is neither considered taxable income to the receiving party nor deductible as income to the paying party. At the federal level, spousal support is no longer tax deductible. Speaking with a tax professional is important to ensure your taxes are filed correctly, especially if you are recently separated or divorced.
There have been several recent changes to spousal support laws when domestic violence has occurred. Under California Family Code 4320(i), documented domestic violence in the marriage must be considered during spousal support payment consideration. Under Family Code 4325, a spouse convicted of domestic violence against their spouse within the past five years cannot receive spousal support.
During a divorce where the parties share children, spousal support is often ordered along with child support. If child support is being paid from one party to another, this will reduce the amount of spousal support that will be paid. This is because child support lowers the payee’s net income. When child support ends, the recipient party may petition the court for an increase in spousal support. This post-judgment motion is specifically authorized by Family Code 4326.
A person can be incarcerated because they are not paying alimony. However, the incarceration is not because of the debt accrual. The party that is supposed to be paying alimony is violating a court order when they do not make support payments. Therefore, they can be charged with and prosecuted for contempt of court. This is generally a last resort that is applied when other collection methods have failed.
A spousal support agreement can be created without going to court. If the separating or divorcing parties can work together and agree on the payment amount and duration, the court will generally accept the agreement. Even spouses at odds can work with a mediator. They may help them reach a mutually acceptable arrangement that prevents a ruling by a judge.
It is not a simple feat to navigate the family court system, especially when you are facing the immense emotions that come during a divorce. Even if divorce is the healthiest choice for you moving forward, it is still a significant change in your life. It will require planning and forethought to handle well. The most beneficial aid is a compassionate and competent Orange County attorney with experience in family law and spousal support.
Choosing a skilled law firm like the Law Offices of Hollie A. Lemkin, APC, is the leading way to ensure you are treated fairly during the divorce. Our team understands the difficult situation you are in. As a result, we strive to be honest and supportive until the conclusion of your case. If you are ready to explore your potential rights to spousal support with an accomplished Orange County family law attorney, contact the Law Offices of Hollie A. Lemkin, APC, today.
Hollie Lemkin is the daughter, granddaughter, sister, and aunt to lawyers. She knows that Family Law is about more than winning. It is about inflicting the least amount of collateral damage on your children and putting your family in the most advisable possible position moving forward. A passionate trial lawyer, she will never back down from a fight.
She is exactly the attorney you want in your corner.
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