Recent Posts in Legal Separations Category

Q.    Can I file for legal separation in California if I just moved here?

Q.     Am I liable for myspouse's pre-marital debt?

Q.     Is there a time limit on exercising my reimbursement rights?

Q.   What is meant by separation in California?

Q.    What is a legal separation?

Q.  How are Social Securities Benefits Divided in Divorce?

A.  The Social Security Act of 1935, which as been amended numerous times over the years, is governed solely by the federal law.  States are powerless to effect changes in its rules and procedures.  Social Security benefits are not actually divided in divorce, and California courts do not divide social security rights.  They are not the subject of divorce settlements.  Social security benefits are considered the separate the property of the contributing spouse.  This is odd, since all other retirement plans are considered as part of the marital estate.  Government employees do not contribute to Social Security.  It is wasteful because, as discussed below, multiple former spouses can collect benefits on the same worker's history.  It is unfair because gays and lesbians who are domestic partners under state law gain no rights in the other's work history.

A spouse of a retired or disabled worker is entitled to derivative social security benefits IF the marriage was at least 10 years in duration.  This is defined as the period between the date of marriage and the date of termination of marital status.  It has nothing to do with periods of physical separation, and is not affected by a decree of legal separation.  It has nothing to do with the filing of a divorce itself.

The Social Security Act originally only covered certain job categories which reinforced traditional stereotyped views of family systems. Women generally qualified for insurance only through their husbands or children.  Amendments in 1939 added women, who became eligible to collect on their own earnings' record and became entitled to collect that or 50% of their husband's.  It was not until 1950 that benefits were extended to former spouses with children.  In 1965, former spouses without children were added but they had to have been married at least 20  years.  In 1977 this time period was reduced to 10 years.

Former spouses married for at least 10 years are now entitled to receive 50% of the Social Security beneficiary's benefits (as either derivative or dependent benefits) without reducing the worker's 100% benefit - in order words, in divorce the working spouse who contributed does not divide or share their retirement benefits and so the derivative benefits for former spouses do not cost either spouse.  They certainly, however, cost the taxpayers.  If the worker spouse dies, a former spouse(s) receives 100% of the benefits of the worker as a surviving former spouse.

This has many strange consequences.  One is that since spouses and state courts cannot divide the benefits, and it costs the working former spouse nothing to allow the other spouse to claim these benefits.  Imagine what hardship this might cause to a spouse whose marriage is terminated 9 years, 11 months, and 355 days after the date of marriage.  They would receive no derivative benefits, period.  It would cost the worker spouse nothing to delay dissolving the marriage one more day.  Many spouses who anticipate a future divorce strategically hold off filing until they are assured this time has passed or will pass, for good reason.  In California marital status cannot be terminated earlier than 6 months after the dissolution is filed and served.  I always alert clients to this area of the law, and have many times recommended patience; it would be attorney malpractice not to.  Sometimes raging working spouses want an earlier divorce just to deprive the other of this benefit.  This can be most unfortunate and downright ugly.  There is a procedure in California for dissolving marital status before a divorce case is completely finished (e.g., where property rights have not been determined) called bifurcation of marital status.  Sometimes a spouse wishes to get divorced immediately so that they can remarry, and this can interrupt the 10 years if the Court approves it.  Courts can order that the bifurcating party indemnify the other out of their own pocket for the loss of benefits, but as a practical matter there is no way for this indemnification to occur.  

Another consequence illustrates a major waste within the Social Security system.  Imagine that Fred marries Nancy the homemaker when they are 19.  After 10 years, they divorce. and Fred marries Jennifer.  After 10 years he moves on, dissolving that marriage and marrying Diane next.  He is now 49 years of age.  With his record, he still may have a couple of more marriages in him.  At this point, assuming that none of these three women have remarried or that they remarry after age 60 (a new marriage before age 60 terminates the right to derivative benefits), each of them are eligible to receive 50% of Fred's benefits while he continues to be entitled to 100%.  This means that 250% worth of benefits will be paid upon Fred's earning history alone.  Even better, if Fred dies before them, each ex-wife is thereupon entitled to receive Fred's 100% - which means 300% will be paid out and, since Fred is a serial monogamist, he will probably leave a widow (Tara) who likewise receives 100%.

Also, note the risks to the women.  If Nancy or Jennifer remarry before age 60 they lose any claims to the benefits generated by Fred and the count begins at zero with their new spouse and are based on the new spouse's earnings record with Social Security (assuming this person is not a government worker).  If their new marriage does not make the 10 year mark, they receive nothing from Social Security from either spouse.  This makes you want to reconsider a second marriage doesn't it - at least if you are a non wage earning wife!  Of course, few people ever think about this because they don't know about it; this is one goal of my website as an informational tool.

California has two state pension plans for government workers which exist outside of Social Security.  These are the Public Employees' Retirement System (PERS) and the California State Teachers' Retirement System (CalSTRS).  There are a number of city and county pension plans.  California teachers, state public safety officers (police and firefighters), and other workers who don't pay into the retirement portion of the Federal Insurance Contributions Act (FICA), do not receive social security benefits once they retire. 

They only may be eligible for some SS benefits based upon their spouse's record or their own earnings from private sector jobs.  However, even these benefits may be reduced under the Windful Elimination Provision (WEP) or the Government Pension Offset (GPO).  These are complicated rules and formulas which are beyond the scope of this answer. 

Q.  What rights do I have to permanent spousal support?

A.  Permanent spousal support is not usually "permanent," although it can be in cases of very long marriages.  Lawyers and judges also refer to it as post-judgment spousal support, alimony, judgment spousal support, or long term support.

Unlike temporary spousal support, long term spousal support is only issued after a final judgment of Dissolution of Marriage or Legal Separation.  It is equally available to domestic partners.  Also unlike temporary support, it is not based on any computer formula or state or county guideline, but must be determined and fixed depending on the facts of every individual case.  If long term support is important to your future wellbeing, you are going to need an experienced support attorney.

There are several very important rules to keep in mind.  First, a marriage in California which lasts more than 10 years (defined as the time between date of marriage and physical separation), is "long term" marriage.  The general rule is that in marriages which are not long term, spousal support should not be payable for more than one-half the length of marriage - or to put in differently, the law presumes that the recipient spouse should be rehabilitated and so become self-supporting in a period equal to 1/2 the marriage.  However, this presumption becomes less important in cases involving older couples, especially where people can not be realistically expected to re-enter the work force, in cases where there children who remain minors, or where the party asking for support has a debilitating disease or disability.

There is no magic ratio for how long a former spouse might be ordered to pay long term support.  Each case depends upon its own facts, the quality of your attorney, and the attitudes of the family court judge.  Even in cases of long term marriages, the support obligation typically will end at some point in time.  However, if usually will not end on its own - meaning that when a trial court orders long term support it will reserve jurisdiction to continue to extent it, until some time when a party petitions the court to terminate support and a judge finally says "enough is a enough." 

Imputed income is often an important argument in long term support marriages, where one party convinces the court that the other party is shirking or failing to genuinely try to become self-supporting.  It is sometimes necessary to have the supported spouse evaluated by a vocational rehabilitation expert. 

There are four components to an award of of permanent support:  1) Amount; 2) duration; 3) substantive increases or decreases over time; and 4) jurisdictional step downs and ultimately a termination date.

Second, Family Code section 4320 is a critical support statute.  I have provided a link and uploaded it so that you may read it.  Essentially it sets forth all the factors that the court must consider in setting post-judgment support, and you will see that it is not an exhaustive list and the court can consider anything else it deems important to the decision.  Support factors include the extent to which the earning capacity of each party is sufficient to maintain the marital standard of living established during the marriage, considering:  a) the marketable skills of the supported party, the job market for those skills, the time and expense required to train that party including education and b) the extent to which the supported party's present or future income earning ability is impaired by periods of unemployment or were incurred during the marriage to permit that party to devote time to domestic duties.

Another factor is whether the supported party contributed to the attainment of an education, training, license, career, or position by the supporting party. 

Another factor is the ability of the supporting party to pay, taking in account that person's earning capacity, income, and assets and standard of living.

Another very important support consideration is the needs of each party - including both. 

Another factor is the obligations and assets of each spouse, including the separate property which each has or gained upon the dissolution.

Another is the ability of the supported spouse to engage in gainful employment without interfering with the needs of dependent children in their custody.

The age and health of the parties is critical in some cases.  65 years of age is the presumed retirement age for adults today, and courts cannot order a person to continue to be employed beyond that age - but, if they make that choice, their income can be considered.

A documented history of domestic violence can affect the right to receive support or the obligation to pay it.

The tax consequences between the parties must be considered.

And, basically, as I said, any other specific facts that trend one way or another.

The three most common factors are the marital standard of living (MSOL), need and ability to pay, and the assets the parties end up with upon divorcing.

Courts cannot order lump sums for support.  Spousal support is generally taxable to the recipient and deductible to the payor, but there are very specific IRS requirements that must be met for this to actually be so.

Courts are required to state their findings on each relevant issue in writing.  In practice though, most people settle their divorce cases by way of settlement agreements.  Unfortunately, lawyers often leave out these findings so that when a court is asked, down the road, by the payor to terminate or decrease support, or by the payee to increase it, there is no map for the court to use to base its modification findings on.

If support is an issue for you either way, please hire a competent lawyer.  There are many attorneys moving into family law from civil practices who are clueless about these things.  Caveat emptor!