Spousal Support and Alimony Attorneys San Diego
In the San Diego family courts, spousal support and alimony are synonymous. There are two different types of spousal support, temporary spousal support and permanent spousal support. In any divorce or legal separation action, temporary spousal support may be paid by the higher earning spouse to the lower earning spouse during the time that the divorce is pending and there has not yet been a final judgment. Permanent spousal support is support paid after the final judgment in the case. There are different standards and Family Code sections that apply to temporary versus permanent spousal support.
Temporary Spousal Support
Temporary spousal support is governed by Family Code section 3600 and requires that the court’s analysis consider the financial needs of each party as well the higher earning spouse’s ability to pay. The goal of temporary spousal support is to set a spousal support amount that is financially necessary to the lower earning spouse while attempting to maintain the status quo.
The Family Court has jurisdiction (the ability) to award spousal support retroactive to the date of filing the Petition for Dissolution of Marriage or Legal Separation. Fam. Code §4333; Marriage of Dick 15 Cal. App. 4th 144.
Permanent Spousal Support
Although commonly referred to as permanent spousal support, a spousal support order incorporated into a judgment for dissolution of marriage or legal separation can be modified in the future and may or may not have a termination date.
Permanent spousal support is governed by family code section 4320. There are numerous factors the Family Court must consider when setting permanent support, which include:
- Income (or earning capacity) of each party (Note: The court may consider imputing income to a party);
- Marital Standard of living;
- The marketable job skills of each party, or the time and cost necessary for a supported party to undergo job training or education to develop the necessary skills;
- The extent that the supported party’s present or future earning capacity is impaired by periods of unemployment during marriage devoted to domestic duties;
- The extent to which the supported party contributed to the supporting party’s education, training; or career enhancement;
- Supporting party’s ability to pay support;
- The needs of the supported party considering the marital standard of living;
- The assets and debts of each party;
- The length of the marriage;
- The ability of the supported party to work without interfering with caring for minor children in their care;
- The age and health of the parties;
- Any documented domestic violence (note there is a presumption that a spouse convicted of domestic abuse will not receive spousal support from the marriage: See Fam. Code §4325 and Marriage of Freitas, 2012, 209 Cal. App 4th 1059)
- The tax consequence of the support order (Note: Spousal support is taxable to the recipient and tax deductible the obligor);
- The balance of the hardships between the parties;
- The goal that a supported party should be self-supporting within a reasonable period of time, which is generally one-half the length of the marriage (Note: Usually only for short-term marriages which are less than 10 years. Long-term marriages are more than 10 years in length); and
- Any other factors the court determines are just and equitable.
The San Diego Family Courts have wide discretion in setting permanent spousal support orders. Keep in mind that the court cannot use a computer calculation (“Dissomaster Calculation”) to arrive at a permanent spousal support order (In Re Marriage of Schulze, 1997, 60 Cal. App. 4th 519). Nevertheless, the courts routinely use a Dissomaster Calculation to compare the net spendable money after support is paid when setting a permanent spousal support order.
Furthermore, when arriving at a support amount, the court will consider the earning capacity of a party as well as the results of a vocational evaluation order under Family Code §4331. Generally, if a spouse has been out of the work force for some time and it is unclear what that spouse could earn currently or the extent to which he or she needs job retraining, it is advisable to have an expert interview and write an expert report related to such information. This is what is known as a vocational evaluation and it is a very powerful tool used by either spouse to ensure the spousal support order set is fair and equitable.
Length of Spousal Support
Generally, for a marriage of less than ten years in length, spousal support may be paid for a period of one-half the length of the marriage. According to Family Code §4320(l), the “length of marriage” is measured from the date of marriage to the date of separation. For obvious reasons, there can be significant differences related to the date of separation, which is usually a factual determination decided by the trial court.
In the event a marriage is more than ten years in length, the court will reserve jurisdiction over spousal support for an indefinite period of time. Family Code §4336. This does not mean that a marriage lasting eleven years will result in spousal payable for twenty years or more, it just means that the Court will not automatically set a termination date for spousal support. Thus, there will be post-judgment litigation in an effort to extend or terminate permanent support.
Finally, in any permanent support order, if either party dies or the supported spouse remarries, then the obligation to pay spousal support automatically terminates by law (Family Code 4337).
What is Alimony?
The term “alimony” is an older term that means the same thing as “spousal support”. It is important to understand that alimony and spousal support, and spousal maintenance all mean the same thing. In California, we use the term “spousal support” to describe payments made from one spouse to another in a legal separation or divorce case. However, other states use the term “alimony” instead of spousal support and even the IRS uses the term “alimony” rather than spousal support.
The IRS defines “alimony” as, “…[A] payment to or for a spouse or former spouse under a divorce or separation instrument. It does not include voluntary payments that are not made under a divorce or separation instrument.” For more information about tax treatment of alimony or spousal support payments, please see IRS Publication 17 here.
Can Men Receive Spousal Support or “Palimony”?
Yes, the law requires that family courts are not permitted to discriminate based on gender. As a result, men are as equally entitled to spousal support as women. Of course, the facts of a particular case (i.e. ability to pay, needs of the parties, marital standard of living, etc.) will determine whether a spouse is entitled to alimony whether they are a man or woman.
Gavron Warning & Efforts to Become Self-Supporting
Generally, a court will almost always enter a “Gavron” warning, which is similar to Family Code §4330, which indicates that each party (or the supported spouse) must make reasonable efforts to assist in providing for his or her support needs. If the marriage is of long duration (i.e. more than 10 years), it is less likely that a Gavron Warning will be issued but that is not always the case.
Modifiability of Spousal Support
Generally, temporary or permanent spousal support is modifiable when there is a change in circumstances. A modification is obtained by executing a written agreement between the parties, or by filing a Request for Order with the Family Court. When a Request for Order is filed, it is called a “motion” and a hearing date is set. The motion is accompanied by a written declaration detailing what changes have occurred since the judgment was entered. The change in circumstance may be significant or minor. The more significant the change, the more likely it will be for the court to modify the judgment or order.
Notably, some judgments are not modifiable. If the parties agree to an order or judgment for spousal support that is irrevocable and non-modifiable, the family court judge in San Diego will not have the power, or jurisdiction, to modify the order.
Also, if a party fails to meet the requirements contained within a judgment it may be grounds for modifying the order. See the Marriage of Schaffer, which stands for the proposition that post-judgment conduct can modify support (i.e. when a party fails to meet obligations contained within a judgment.)
Parties by agreement, or the court in certain circumstances, may order automatic “step downs” in spousal support orders over specific periods of time. These step-down orders are known as Richmond orders. In certain cases, if the family law judge believes that a party can or should be earning a specific amount of money through employment, or due to other factors, they may grant an order automatically reducing alimony every year, every two years, every five years, or on any other schedule until the amount of spousal support to be paid reaches zero.
Termination of Jurisdiction
The court’s jurisdiction, or power, to order spousal support will terminate upon the parties’ agreement or when the court enters such an order. For example, if the parties are married for five years, the presumption is that spousal support should not last more than 2.5 years, which is one-half the length of marriage. The court may order that its own power over the issue of spousal support terminates at the conclusion of 2.5 years.
For more information about spousal support, contact our firm today for a free initial consultation.
How is variable income calculated for spousal support in San Diego courts?
The San Diego family law judge has two options when looking at variable income for considering child support. First, the court can “annualize” variable income to an average amount. Second, and the more likely option, is for the court to employ the “Smith-Ostler” formula for calculating child support. This formula takes a certain percentage of gross variable income for which the person receiving such money must pay in child support to the other parent.
Variable income can be a very complex issue in divorce and support cases. Because people do not want to pay spousal support generally, they will try and skew their variable income so that it appears as if they make less than they do. For example, using a sample of income over a 2 month period may result in a vastly different amount of income over a two year period of time. The difference could make thousands of dollars per month difference in the spousal support amount. These are the kinds of details that divorce lawyers consider and it is well worth the investment to hire a qualified lawyer to help with your spousal support matter.
For more information about alimony and spousal support settlement and litigation in San Diego County, contact our offices today. We are certified specialists in family law and Scott Finkbeiner is a fellow with the American Academy of Matrimonial Lawyers (AAML), the most distinguished group of family law attorneys in the country.