Spousal Support Upon agreement of the parties or upon the motion by one of the parties, the court has the authority to enter an order that deals with a wide range of issues, including custody, parenting time, child support, and spousal support. That order will remain in place until further order of the court or until the case has concluded. The court may also order one party to pay “suit money” to the other party, which is then used to pay for attorneys and experts to move the case forward to resolution. The court can order a party to pay certain bills, and can award one party the temporary exclusive use and possession of real or personal property or business interests. The court can also allocate responsibility for paying household bills between the parties. A motion or request for pendente lite relief should be filed early in a divorce case, to ensure that financial obligations are met on a timely basis and to protect each party’s rights while the case is pending. Spousal Support or Alimony Permanent spousal support is determined by a number of factors. A temporary order for spousal support, or an order that will continue until a permanent award is made, can be applied for by the filing of an Order to Show Cause. Spousal support is often negotiable along with division of assets, and may be used to offset allocation of some particular property. Factors for Determining Spousal Support There are many factors in determining spousal support, some of which are: each spouses’ earning ability, a spouse’s ability to pay, the marital standard of living, the age and health of each spouse, any domestic violence issues, tax consequences, relative hardships, the duration of the marriage, contributions to a career or education, and any career or educational opportunities deferred to care for dependent children. Temporary Spousal Support Temporary spousal support is an order for payment of monthly spousal support from the beginning of your case until the end of your case at which time, an order for permanent spousal support is entered by the court. It is calculated by taking 40% of the net income of the party ordered to pay support, minus 50% of the net income of the party receiving support, adjusted for tax consequences and income not allocated to child support or child related expenses. Termination of Spousal Support California statues state that the supported spouse shall be self-supporting within a reasonable period of time. Except in the case of a long term marriage, a reasonable period of time has been defined as one-half of the length of the marriage. However, the law provides that the court may order support for a longer or shorter period of time, depending upon the facts of the case. If your marriage is less than ten years and both you and your spouse are of working age and in good health, the court generally will set a date when the court’s jurisdiction to award support will terminate. After this date, further support can be ordered. The time period is often one-half of the length of the marriage. If your marriage is over ten years, often the court will not set a termination date unless the parties agree to one. The spousal support order and/or the right to ask for spousal support will continue until the death of either spouse, remarriage of the supported spouse, or further order of the court. Health Insurance If your spouse has health insurance available through his or her employment, he or she must continue to maintain you on the insurance during your divorce action. After you are divorced, however, your spouse cannot maintain the same insurance coverage for you because you are no longer a dependent. Reducing or Terminating Spousal Support If the court orders that monthly support is to be paid until remarriage, death or further order of the court, a former spouse can, at a later date, request a review and for a reduction of spousal support based upon new circumstances of the former spouses. Taxes The paying spouse can deduct all spousal support payments. The receiving spouse must include the support as taxable income on their State and Federal Income Tax Returns. Child support is not deductible nor treated as income. Family support, which is a combination of child support and spousal support, is deductable. This should be used when one spouse has a large income and the other a relatively small one. Head of Household is the parent the child or children reside with for more than 50% of the year. Dependent children are claimed on the tax return of the parent who has primary custody unless the parents agree otherwise. Child Support Guidelines The amount of child support a parent is required to pay is based on a calculation using the Child Support Guidelines produced by the State of California. Child Support continues until the child reached the age 18 unless the child is a full time high school student who lives with a parent, in which case, child support will continue until graduation from high school or age 19, whichever occurs first. Factors for Determining Child Support The number of children involved. The father’s income or his earning ability. The mother’s income or her earning ability. Time spent by each parent caring for the child or children. Health insurance and related costs. The need for daycare. Determining Net Disposable Income The amount of child support paid by a parent is determined by adding a parent’s income source(s) and then deducting from that any mandatory or unavoidable expenses. Income sources include: wages, tips, commissions, bonuses, unemployment benefits, self-employment earnings, rental income, dividends, interest, workers compensation and disability benefits, pension and Social Security payments, and any other payments or credits, including lottery and other prize monies, that a parent is owed. Mandatory or unavoidable deductions include: taxes, health insurance premiums, child support or alimony currently being paid, estimated costs of caring for other children, union dues, and contributions to retirement accounts. Modification of Support Payment of child support and spousal support are made according to the incomes and the financial needs of the spouses and children(s) at the time of a divorce. At some later date, circumstances may change for either the divorced spouses or their children which will allow a spouse to petition a court or child support services for a modification by proving a substantial change in circumstances. Child support payments may also be changed if the original support order was set below the state’s guidelines, regardless of whether circumstances have changed. Some of the issues that can be used to prove substantial change in circumstances include: Paying spouse’s loss of work or income. Receiving spouse’s increase in income. A change in child custody or the amount of time a child spends with each parent. A substantial change in the child’s financial needs. Gavron Warning Where the court intends that a party is to become self-supporting by a given date, it generally must first give that person advance warning. Marriage of Gavron (1988) 203 Cal.App.3d 705. A supported spouse may be expected to become partially or totally self-sufficient, so that they can no longer be expected to rely on a former spouse for economic support. At some point the entitlement to be supported usually ends. This means it is up to a judge to decide, anytime during the proceedings, whether or not to give the warning. One of the factors that the court must consider is the length of the marriage. Courts no longer will provide a spouse with lifelong alimony. A spouse is typically entitled to receive spousal support for only so long as necessary to become self-supporting.
Posted on: Mon, 20 Jan 2014 04:42:06 +0000
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