Spousal Support FAQs

On Behalf of | Jan 15, 2014 | Divorce, Spousal Support |

Q: Why is spousal support important?

Spousal support is often the largest financial obligation you will incur as part of a divorce. If you are not proactive, spousal support can last decades and cost you hundreds of thousands of dollars. If you end up paying $1,500 per month over a 20 year period, that amounts to $360,000 in spousal support payments. Even reducing that amount by $500 per month saves $120,000 over 20 years.

Q: Doesn’t the court just run the ‘DissoMaster’ computer program and arrive at a spousal support payment?

While the court may use a computer program or guideline to calculate a temporary spousal support amount before the trial, the court is not allowed to use the DissoMaster in calculating permanent support. In re Marriage of Olson (1993) 14 Cal.App.4th 1, card ß{SpSu 624.02}, a permanent spousal support order based on the Dissomaster was reversed because of the failure to consider all 4320 factors.

Q: My spouse had multiple affairs during our marriage. Will this affect the amount of support?

California is considered a no-fault state. Accordingly, the court will not consider your spouse’s affair when determining spousal support. However, if your spouse is cohabitating, the court must presume he or she has a decreased need for spousal support and this can have a significant impact to permanent support awards.

Q: What is the 10 year rule?

Marriages of 10 years or more are considered marriages of long duration in California. As such the court is not allowed to set a definite termination date for spousal support at the time of the trial. Many people and attorneys misinterpret this rule to mean that California has lifetime spousal support in marriages of long duration. This is not the case, as proven by the citation below:

As recognized by our Supreme Court the public policy of this state has progressed from one which “entitled some women to lifelong alimony as a condition of the marital contract of support to one that entitles either spouse to post-dissolution support for only so long as is necessary to become self-supporting.” In re Marriage of Schmir (2005) 134 CA4 432.

While the court cannot terminate spousal support by a certain date, they can set a date for termination unless the supported spouse applies to extend the support on or before that date. In marriages that are just over 10 years, or if the spouse has excellent career prospects, this is often a fruitful strategy to pursue. In marriages of less than 10 years, spousal support is presumed to be no longer in duration than half the length of the marriage.

Q: Can I stop paying support when I retire?

Under In re Marriage of Reynolds (1998) 63 Cal.App.4th 1373, you are entitled to retire at age 65 and cannot be required to work to support your spouse beyond that age. There is additional law which says that may even be earlier. Arguably, if you’re forced into early retirement, you may be able to convince the court that you should not have to continue paying support.

Q: I’m up for a big raise. Will this affect my payments?

Under a case called Hoffmeister II, the court cannot consider your increased post-separation earnings as a basis for awarding support beyond that which is justified by the marital standard of living. However, it is important that your Judgment include language to protect against the increased ability for pay being considered after your divorce is final.

Q: My income just went way down. Can I get my payments reduced?

Yes; if you have been involuntarily terminated or had your income reduced, you should be able to receive a temporary abatement of support. In many cases, if you are unable to obtain comparable employment and have to take a pay cut, you may be able to receive a permanent spousal support reduction or termination.

Q: I’m self-employed. If I earn less, can I reduce my support?

Yes; if your business has been affected by the recession and you are earning less, you should be able to lower your spousal support obligations so long as the decrease in income is substantial.

Q: I’m self-employed. If I work less can I pay less?

Possibly; under California law, you can only be required to work a “reasonable work regimen.” This could apply if you are working well about a “typical” day in your work field.

Q: I was ordered to pay my former spouse a percentage of my bonus or overtime income on a monthly basis. Is this legal?

Know as “Smith-Ostler” orders, they can be very problematic in the area of spousal support. Unless there is an annual cap, these orders may end up providing your former spouse with more support than is consistent with the marital standard of living. These orders are also difficult to enforce and calculate. While there are some circumstances where these orders are necessary, they can be problematic and an analysis should be performed to see whether this is the appropriate option in your case. If so, it is important to have the appropriate language regarding disclosure and remedies if the recipient spouse fails to receive the additional income.

Q: My ex-spouse is up for a big raise. Can I pay less after that?

Yes; if the supported spouse earns more, it’s usually a good reason to go to court and have their support reduced or terminated.

Q: My spouse doesn’t work and doesn’t want to. Can I force him or her to become self-supporting?

You can’t force them to get a job, but you can obtain a vocational evaluation and have to court consider lowering or terminating support if they have not sought out employment. The court can also assign them a fictional income if you can prove they are purposefully avoiding employment despite the availability of positions consistent with their skills.

Q: My spouse claims to be disabled. Is there anything I can do about this?

Yes; oftentimes non-specific disability claims for “stress” or “depression” are a central reason the ex-spouse says they can’t return to work. There may be a valid disability, but it may only impact certain job fields, leaving open the possibility of employment in another industry. For instance, someone with a back injury may not be able to work in construction or in a warehouse, but can do so at a computer terminal or desk.

In many cases an Independent Medical Evaluation is recommended. Once the IME is completed, a licensed vocational counselor makes suggestions as to what type of employment is available, with respect to the person’s limitations.

Q: Will the division of assets have an effect on support?

Yes; if your spouse is awarded significant assets, or if you make significant equalization payments over time, this should be considered as a mitigating factor against spousal support.

Q: Can I avoid paying support by declaring bankruptcy?

Spousal support obligations are generally non-dischargeable in bankruptcy. Filing for bankruptcy doesn’t help you avoid paying support.

Q: Will I get any relief from support through taxes?

Spousal support payments are generally tax deductible to the payor and taxable to the recipient.

Q: My ex-spouse is getting married again. Does this mean I can finally stop paying support?

Yes; your obligation to pay spousal support ends upon his or her remarriage. You may need to obtain an order terminating a wage assignment if there’s one in place.


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