Expert Spousal Support Attorneys
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We delight in handling complex spousal support issues from all angles. We want you to be informed about the law and to make it understandable for you. Creativity and expertise can dramatically affect not only family court outcomes, but also makes a huge difference in achieving fair settlements whether through mediation or otherwise.
Family Code § 4301 establishes a statutory duty of support between married couples and registered
domestic partners, but it requires that a court first order support for
this support obligation to be enforceable. Support orders are obtained
by stipulation and agreement, or through contested support hearings. Spousal
support is generally not available in annulments unless at one party can
establish a "putative spouse" status.
Support awards may be ordered as temporary support ("pendente lite spousal support") or they may be issued when a Final Judgment or Decree of Legal Separation is entered. Different rules apply to how temporary support is figured than those that apply to awards of permanent or long-term support.
What is "Temporary" Spousal Support?
Temporary spousal support is intended to preserve the financial status quo at the time of physical separation when people are moving from one into two households. It has little to do with the length of the marriage. It tends to be higher than judgment spousal support.
In fixing temporary support Courts focus upon the historical income and expenses existing pre-separation - typically for the prior 12 months. Each is required to submit before the hearing an Income and Expense Declaration (Form FL-150).
Most California counties have formulas that determine the amounts for temporary spousal support. The two most important are Santa Clara and Alameda. The support formula for Santa Clara County, which is generally used by Riverside County, is as follows: From any amount which is not allocated to child support take 40% from the net income of the payor spouse, less 50% from the net income of the recipient spouse. The resulting number is the temporary spousal support.
Because these numbers have to be tax effected in order to determine 'net income,' the formulas are expressed in computer programs. The two most common are the "Dissomaster" and "Xspouse". The Indio Family Law departments utilize Xspouse. Into one of these programs is inputted the gross incomes of the parties. If there are children, the respective custodial timeshares between the parents as to each child, in percentages, must also be entered.
Where a party is a self-employed spouse, their net pre-tax earnings must
be determined after deducting business expenses. This can be a complex
area, because what is deductible for purposes of Schedule C accompanying
a tax return is not binding upon California courts for purposes of figuring
support. If other words, what is deductible for IRS purposes may be added
back for support purposes. Only certain expenses matter for purposes of
temporary support in California. What doesn't matter is most personal
expenses (like utilities and credit card debt).
Since the court determines the support obligation weeks after a request for support is made (by way of a "Request for Orders" (RFO) application with is filed with the Superior Court), it typically makes the support order retroactive to the date the request was filed. Spousal support will only be issued retroactive to the date you file your RFO, so it is smart to file your application sooner rather than later.
What Is "Permanent" Spousal Support?
In long term marriages or domestic partnerships, typically in excess of 10 years, 'permanent' spousal support is not determined by a guideline formula but instead by Family Code § 4320, which lists a number of factors that Courts must examine. In some cases considering these factors results in a lower support entitlement or obligation than at the temporary stage, but the chief considerations are (1) the marital standard of living establishing during the final years of the marriage, (2) the needs of the supported party, and (3) the ability of the higher earner to pay. "Permanent" support is a misnomer - it is more accurately referred to as "Judgment Spousal Support" in order to distinguish it from "temporary spousal support."
Complications arise when one party is shirking their responsibilities - as when a non-custodial parent refuses to find employment or fails to report their earnings honestly - or when a party is receiving financial benefits that are disguised as borrowings, loans, or gifts from outside family members. The law has expanded to require that Courts evaluate equity in assets that might have been used to spin off an income but for the investment decisions of the spouse who controls that asset, even where the investment is passive and there is no taxable return or income stream from such investments.
spouse's "new-mate" income from either a remarriage or cohabitation is generally irrelevant for purposes
of setting either temporary or permanent support. However,
cohabitation by the supported spouse may create a presumption that their need for spousal
or partner support has been reduced.
If you are obligated to pay spousal support to your former partner, you may want to consider having them undertake a vocational examination. This may result in an imputation of income to them and so become a basis to lower or terminate your alimony obligation.
Remarriage of your former spouse, or a new domestic partnership, will terminate your spousal support obligation. So will the death of either party.
Support orders are critically important to you. You must have an experienced support attorney who knows the legal details to obtain a fair and just outcome at the outset because once the Court makes an initial award, you could be stuck with it for years.
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