San Diego family law attorney
In many divorce cases in California, spouses can agree on challenging issues; for instance, child custody, child support, and property division without going to court. But most couples need the court’s intervention when deciding on spousal support. The law determines the duration and amount of spousal support that a spouse can pay the other after a careful review of several elements. The court has substantial discretion when it comes to settling spousal support. If you’re incapable of resolving or settling this issue, your lawyer needs to come up with detailed proof about each element considered.
In this article attorneys at the San Diego Family Law Attorney expound more on how the court will determine the duration and amount of support, the kind of support available, and whether or not you can alter it later.
Understanding What Spousal Support Means
Spousal support is also referred to as alimony. It is a set of payments that a higher-earning spouse makes to his/her partner in the course of the divorce proceedings and usually after the judge settles the divorce process.
Alimony aims to enable the transitioning of a less-earning spouse from married life to being single. Even though it may appear unfair that you have to support your ex-partner, the purpose is to make sure that both you and your partner divorce on an equal financial basis, and at times, that cannot happen without further support.
A marital union is like a partnership, in both bad and good times, for better or worse, and in sickness and health, and there’s inconsistency in the attempts of the spouse’s weaknesses and strengths. When the spouses separate, spousal support is a means of equalizing the living standards between them since one spouse may have concentrated on their earning capability, wealth gain, and career if they hadn’t devoted themselves to domestic chores in the course of the marriage. This is the simplest and archaic way to put it, but that is the aim of spousal support.
Types of Alimony in California State
Like most states, California courts provide temporary, permanent, and rehabilitative spousal support. Also, the state recognizes a special kind of alimony known as reimbursement support.
The supported spouse can request temporary alimony. If the court grants temporary support, it’ll generally be awarded from the day it is requested up to the period the court settles the divorce case.
The goal of temporary alimony is to permit a party that’s earning less to offset living expenses in the course of the divorce proceedings. This kind of spousal support is unique because the judge usually calculates the alimony amount using the child support guidelines rather than the alimony factors that we will look at later in the article.
The most common among spousal support type is rehabilitative support. It’s common in situations where one party earns much compared to their partner or was otherwise the primary earner of the family while the other party took care of the home and children in the course of the marriage. This rehabilitative alimony aims at providing the spouse that’s earning less with adequate support to give him/her time to acquire valuable education or job skills to join the workforce and be self-supporting.
Rarely awarded is permanent alimony. Generally, the court reserves this form of spousal support for partners that are dissolving a long-term marital union (that is ten years and above) where one party cannot get into the workforce because of advanced illness or age.
California divorce is unique since if one party assisted in financing the other’s career advancement training or education in the course of the marital union, that party could seek reimbursement support to recover the money used in the course of their marriage. The notion behind the reimbursement support is when a married couple works together to permit one to acquire advanced education, both benefit from that advancement in the course of the marriage. The moment this couple divorces, only the partner that has the degree benefits and the judge understands that might not be just to that other partner.
How the Court Determines Spousal Support
Alimony in California is gender-neutral. This means that either partner can seek it from his/her spouse. However, the basic rule when it comes to any alimony case is the requesting partner has to be needing the alimony, and his/her spouse is capable of providing it. If spouses cannot pass this general test, the judge will not award any spousal support.
If you are requesting temporary support, the court gathers financial details from each partner, including info about expenses, income, debts, and assets then it determines an amount by use of a temporary spousal support calculator.
When it comes to the other kinds of alimony provided in California (permanent and rehabilitative), the court determines each partner’s income then evaluates the following elements to calculate a final spousal support amount:
- The earning capacity of each spouse.
- The level to which the spouse seeking support contributed to his/her partner’s professional license or educational degree during their marriage.
- The ability of the paying spouse to pay alimony, considering unearned and earned income, earning capacity, the standard of living, and assets.
- The assets and debts of each spouse, which includes separate property.
- The needs of each spouse based on their marital living standards
- The period of marriage
- The health and age of each party
- The ability of the supported spouse to get employed without interfering with the care of the parties’ children.
- Whether or not there’s a documented record of domestic violence against the children or either party
- The consequences of tax to either party
- The hardship balance to either spouse
- Any conviction of a criminal offence of an abusive partner
- The aim that the spouse receiving support will be capable of supporting himself/herself within a practicable period.
- Any other factor that the judge wants to consider
In determining the reimbursement support amount, the judge considers the amount spent on the education or career of the spouse.
How Long Does Spousal Support Last?
The requesting spouse could seek temporary alimony as early as on the divorce filing date. As we mentioned earlier, temporary support will end when the court finalizes the process of divorce. Being awarded temporary spousal support does not warrant a new, continuous order of permanent or rehabilitative support.
The period that the permanent and rehabilitative support will last is based on the factors we listed above and the discretion of the judge. Generally, rehabilitative alimony can only last as long as it will take the receiving party to gain the necessary skills or training to get into the workforce. Permanent and rehabilitative support will come to an end in case the receiving party remarries or in case either of the parties dies.
Is it Possible to Change Spousal Support?
Either party can seek for the judge to terminate or modify the alimony order if they can prove substantial circumstantial changes since the initial court order was implemented. For instance, if the receiving spouse is not making any effort of good faith to be self-supporting, the court might end or modify the support. The same may apply if the spouse paying the alimony becomes disabled or ill and cannot make payments anymore.
Payment of Alimony
The court dictates how the spouse paying the support will pay the alimony. At times, in situations where one party owns a substantial amount of money or separate property, the judge will permit the paying party to give a lump-sum payment of cash or property to the receiving spouse.
A lump-sum payment is advantageous to the spouse paying the support since it abolishes the continuous need to pay the receiving party or the chances of the receiving spouse asking for a raise in alimony later. The receiving partners benefit from lump-sum payments as well since there will be no need to be worried about their partners failing to make payments in the future. But a lump-sum payment eliminates the likelihood of altering the award in the future.
Usually, the judge will order periodic payments, generally monthly. The judge will issue the employer of the paying spouse with an income withholding order, which directs payroll to withdraw the alimony from the paycheck of the employee. Withholding income is advantageous except if the paying party voluntarily stops working to evade payment or changes jobs and does not inform the judge. In situations where the spouse paying the alimony fails to adhere to the court order, the receiving party can seek the court to intervene, so he/she can recover the missed payment.
Taxes and Alimony
If the judge ruled on your divorce case before the 31st of December 2018, the IRS (Internal Revenue Service) permits the paying party to include the payment as a tax deduction. The receiving spouse, on the other hand, has to report the alimony payment as income. But present alterations to the (TCJA) Tax Cuts & Jobs Act abolished any deduction of tax or requirements of income reporting. This means that the IRS won’t count the support payment as income for the receiving spouse and the spouse paying the alimony will not get credit.
Spouses negotiating their alimony arrangements need to consider the new changes when it comes to taxation before going ahead with making any agreement.
A critical point to note in California divorces is that the state’s law on tax still obligates the spouse receiving alimony to list the support payment as income and permits the paying party to claim the deduction for state tax returns purposes. If you are not familiar with the California tax requirements, reach out to a skilled lawyer who will help you learn more.
The Cost of Living Plays a Role in Determining Spousal Support As though figuring out spousal support was not challenging enough, there is yet another element you have to consider, which is the living cost. Given the state’s size, the living cost varies widely from one county to another, and even from one town to another.
For instance, suppose your marital home is in Encinitas, the county of San Diego, and you are the paying spouse. Your recipient partner is relocating to Ontario, Los Angeles, once the divorce is finalized. There’s a difference of approximately 20% in the living cost between the two towns.
The question you should ask yourself is, will you make payments depending on the cost of living in Encinitas, or will you make payments based on the cost of living in Ontario? You need to consult your lawyer in a situation like this for more clarification.
What if Children are Involved?
You might have been told that alimony amounts in California depend partly on the income of the spouse paying the support. This means that in case you have children, then there’s child support in question, that will lower the net income amount that’s available for paying spousal support.
In other states, spousal support has to be calculated first before an amount of child support can be agreed upon. However, the reverse is true in California. Spousal support in California is only determined after child support amount is agreed upon.
The amount to go on child support is subtracted from the net income of the paying spouse, and then the remaining net income is used to calculate spousal support. However, the question is, if the income of the spouse that’s receiving child support goes up, should that lower the spousal support amount to be paid?
When it comes to spousal support, every couple’s circumstances and situation are unique. If you’ve minors and there’s the involvement of child support, the case gets more complicated. Therefore, reaching just agreement on spousal support with your spouse needs more than a conversation or a guess as there is much to be discussed in this highly complicated matter.
How Self-Employment Income is Treated in Determining Alimony
Usually, self-employment income presents quite an interesting and, at the same time, difficult analysis when it comes to alimony. Couples that own businesses often mix business and personal expenses and tax returns don’t display the entire picture, though they’re a good place to start. There are several different kinds of businesses a person can own or have an interest in ownership, including corporations, sole proprietorships, partnerships, limited partnerships, limited liability companies, etc. The spouse could receive distributions, a salary, or there could be income held within the business referred to as retained earnings. Additionally, the spouse might receive specific benefits like vehicle and gas allowance, contributions to a retirement account, and company credit.
The key to each case whereby a partner is self-employed or controls their pay via their job even when they don’t practically own the business is to collect the correct information during or before the divorce. In the course of the divorce proceedings, your lawyer can conduct discovery and gather info that relates to the self-employment of your partner, including sending subpoenas, demanding documents, taking dispositions, etc. Bringing to the court the relevant and appropriate information about self-employment, personal, and business income is critical.
Almost always, the claimed income of a self-employed spouse is substantially less compared to what a judge will determine to be the party’s income in case they’ve all the needed details. In certain rare cases, the claim of the spouse of self-employment pay is equivalent to whatever the judge finds.
When the Receiving Spouse Remarries
We have several automatic means through which spousal support will end under the law of California. Firstly, if the support recipient dies, alimony will be terminated. Also, if it reaches a particular date that the court directed or the couple agreed alimony should end, it will be terminated. Another instance is whereby the recipient spouse remarries. In this case, alimony won’t be paid to the spouse except if the couple explicitly agreed that alimony would continue being paid even after remarriage.
There are also cases where the support recipient moves to cohabitate with another person after divorce is finalized, and the court has made the alimony order. In this case, the law states that there’s a rebuttable presumption that will affect spousal support. Simply put, if the support recipient starts cohabiting with his/her girlfriend or boyfriend or fiancé, there’s an assumption that the needs for the support recipient that warrant alimony are reduced. In this case, the paying spouse can bring a motion seeking to limit, terminate, or reduce alimony.
A support recipient can, on the other hand, fight the motion to terminate, limit, or reduce alimony even if they’re cohabiting with someone else. For instance, if the receiving spouse shows proof that he/she and their new partner don’t share expenses, and pays for everything separately, the assumption would be rebutted since the financial situation of the recipient spouse has not changed.
Find an Expert Family Law Attorney Near Me
If you’re looking for an alimony attorney in San Diego, CA, do not hesitate to contact the San Diego Family Law Attorney and schedule a free consultation. Our firm has solved countless cases concerning spousal support and understands San Diego alimony guidelines in detail. We will use our knowledge and skills to determine your net income per month and ensure that you get or are obligated to pay what’s just and lawful. By retaining services from our firm, you’ll get the full support and attention from a caring family law lawyer who boasts the skill and experience to obtain the outcome you deserve. Call us right away at 619-610-7425 for quick, efficient services.