California Family Law Attorney
2 entries found. Viewing page 1 of 1.  
June 11, 2010
  What should I know if I want to LIMIT or TERMINATE SPOUSAL SUPPORT in the future?
Posted By Thurman Arnold

Q. My wife and I were married for 14 years. We have two children, aged 11 and 13. We are in our early 40's. My wife has a college degree, but quit working shortly before our first child was born. I am a doctor, and she was a nurse. Our divorce is not final. I think she should be able to support herself once she gets some updated training, although I don't object to supporting our children. She says she won't work until until our youngest child finishes high school. What should I ask the judge to do and what should I expect to limit my spousal support exposure?


How Terminate Spousal Support?

There are a number of things you need to know.

First, you have a long term marriage within the meaning of Family Code section 4336. Start with the expectation that you will be paying alimony for at least half the length of the marriage, assuming your relative income circumstances do not change.

Second, Family Code section 4320 sets forth the most important factors that a court is required to consider in issuing a spousal support award; it is also the decisive section for determining whether spousal support should be modified, reduced, or terminated in the future. As to later modifications, this means that whatever the court decides as to the 4320 factors (or depending upon what facts are recited in your Marital Termination Agreement) may have a huge impact on how much you pay and for how long. The 4320 factors only come into play when a final judgment enters: Although courts are supposed to consider them in dealing with temporary spousal support issues, they typically do not.

Third, it is essential that you convince the Court to give your former spouse a Gavron warning. I have separately blogged this concept. In essence its effect is to give a supported spouse something of a free pass to rehabilitate themselves and enter the work force until and unless they've been given advance notice of that expectation.. If you settle your case without going to trial, as I sincerely hope you do, make sure that a Gavron Admonition is included in your settlement agreement. It starts the clock ticking on your former wife's obligation to become self-sufficient. However, you need to realize that her ability to do so will be impacted by her child rearing responsibilities to whatever extent they exist, and most courts will consider this. It becomes less relevant with older children. Given the length of your marriage (14 years) your youngest child will be finishing high school right about the time that you reach half the length of the marriage.

Fourth, consider trying to get what is called a Richmond Order. Essentially this is an order or an agreement to terminate spousal support jurisdiction on a specified date unless, prior to the fixed termination date, the supported spouse files a motion showing good cause to modify the amount of support or its duration. Unlike most orders which are open-ended, a Richmond Order discourages delay and supports the goal of California that an ex-spouse receive support only so long as is reasonably necessary to get back on their own two feet. They are generally not appropriate in extremely lengthy marriages, or in situations where health or age makes it unreasonable to believe the other party can become self-supporting.

Age is a factor in your case because there is still time for your Wife to develop financial independence.

The effect of the Richmond Order is to place the burden upon the supported spouse to justify continuing support because of unforeseen future events. Most judges prefer Richmond orders, but you won't get it unless you request it. Attorneys representing supported spouses are less likely to agree to them in Marital Settlement Agreements at first blush. There may be good reasons, however, that be persuasive if you persevere.

Fifth, consider a request for step down spousal support orders where support is reduced in increments into the future; this may make perfect sense depending upon the length of marriage, whether there are children, and the supported spouse's age.

Sixth, consider a Family Code section 4331 Vocational Training Examination. Even if the Court concludes that it is not reasonable for your wife to work now, this may create an important benchmark which will be useful to you in the future. Downstream if she does not obtain employment she arguably might have, the Court may be convinced it should impute income to her that might have otherwise earned.

At this point in the proceedings you are setting the stage for a future reduction. That requires smart advance preparation. Find a competent spousal support attorney in your area!

By the way, this is exactly why you should want mediation rather than a court judgment. IMHO. Mediation takes the future into consideration, and creates a safe container for the parties to talk about it!

Want more articles about spousal support rights and obligations in California?

If you appreciate our efforts, why not show it by liking us on Facebook?

Thurman Arnold III


Continue reading "What should I know if I want to LIMIT or TERMINATE SPOUSAL SUPPORT in the future?" »

Permalink  | Comments()
 
December 28, 2009
  What is permanent SPOUSAL SUPPORT in California?
Posted By Thurman Arnold

Q. What rights do I have to permanent spousal support? I live in Palm Desert, CA.

Suzanne


A. Permanent spousal support is not usually "permanent," although it can be in cases of very long marriages where the respective financial circumstances of the parties justify it. 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 may need an experienced support attorney - even if the support numbers are presently a matter of agreement between you and your (former) spouse.

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 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 downstream 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 (Richmond Orders), and ultimately a termination date.

Second, Family Code section 4320 is the critical California spousal support statute. 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 parties.
  • 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!

Author: Thurman Arnold

Continue reading "What is permanent SPOUSAL SUPPORT in California?" »

Permalink  | Comments()
 
2 entries found. Viewing page 1 of 1.