(805) 888-7230 tony@oskofamilylaw.com

 Spousal Support

Like most other issues in family law, spousal support (AKA alimony) can run the gamut from quite simple to the very complex. California Family Code 4320 takes into consideration an extensive number of factors and circumstances. Some of the following factors will apply to your situation, others will not. In a perfect world, the supporting spouse—the person paying spousal support—would be able to make enough money to maintain the lifestyle they want as well as their spouse’s and children. However, this is rarely the case, and so a court will base spousal support numbers on your unique circumstances. 

 

  1. Specifically, how is spousal support determined?
  2. Does it matter how long I was married?What is a Gavron Warning?
  3. If my spouse or I haven't worked in a long time, how will that affect my spousal support?
  4. The role of domestic violence in spousal support.
  5. How do taxes affect spousal support?

How Spousal Support Is Determined

If you are the supported party (the person support is being paid to) you need to understand that the court takes into account your marketable skills. This includes the job market for those skills, the time and expenses required for you to acquire education or training to develop those skills, and the possible need for retraining or education to acquire other, more marketable skills or employment. In short, the court will try to determine what it will take and how long it will take for you to become self-supporting.

The court recognizes that a supported party’s marketable skills may have been impaired by periods of unemployment that occurred during the marriage in order to permit the supported party to devote time to raising and caring for children, taking care of the house, and managing all the other domestic matters.

The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party is also a factor. In other words, if you helped your spouse get their education so that they could advance their career, the court will be take those facts into consideration.

Note that the court will take child custody into account too. That is, a court will consider the ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party. In other words, a court will consider the burden employment will have on the ability of a parent to take care of their children.

It is not always about the supported spouse. The ability of the supporting party to pay spousal support matters here too. The court will consider the supporting party’s earning capacity, earned and unearned income, assets, and standard of living

 

Does It Matter How Long I Was Married?

The duration of the marriage is an important factor. Generally, a long-term marriage is one of 10 years or more. Anything less is considered a short-term marriage. A general rule of thumb is that spousal support will be paid for half the time a couple was married during a short-term marriage. For example if you were married for 6 years, then spousal support would last for 3 years.

But what about a long term marriage; will you be paid or have to pay spousal support for life? This seems to be a misconception among many people. A court may maintain jurisdiction over spousal support indefinitely, which means that it can review a spousal support order in the future. For example, a court orders spousal support to be paid for 5 years. After the 5 years is over, the supported spouse can come back to the court and request that spousal support continue for X amount of time, and the court will be able to decide whether or not to grant the request.

Further, the court will consider the age and health of the parties when determining an appropriate number for spousal support. For example, in a marriage of 35 years, will the supported spouse with heart condition be expected to become self-supporting if she had been a stay at home mom and homemaker for four decades? Likely not. In this situation will the husband be expected to pay the same amount of alimony at age seventy as he was paying at 55? No, but he will have to go back and ask the court for modification downward because we do have the right to retire.

The factors of age and health do not only apply to long-term marriages and elderly people, and age and health are not necessarily tied together. Just know that either age or health can be a factor in determining spousal support.

What Is A Gavron Warning

Family Code 4330(b) states:

When making an order for spousal support, the court may advise the recipient of support that he or she should make reasonable efforts to assist in providing for his or her support needs, taking into account the particular circumstances considered by the court pursuant to Section 4320, unless, in the case of a marriage of long duration as provided for in Section 4336, the court decides this warning is inadvisable.

In other words, a court has the discretion to communicate to the supported spouse that they have an obligation to become self-supporting in a certain period of time. A court is not required to give a Gavron warning though, although the supporting party often requests them.

Gavron warnings are given when the judge makes an order. That is, when the final decision comes down, generally the judge will either tell the supported party about the warning in court, or they may put it in writing (or both).

How long will a supported party be given to become self-supporting? It depends on the party’s circumstances. A person who has not worked in 10 years will be given more time than a person who can become self-supporting relatively quickly if they’re merely under-employed. An example of underemployment is a person who has current marketable skills, but is only working part time. In such a case the conversion to full time employment will not be expected to take several years.

If My Spouse Or I Haven't Worked In A Long Time, How Will That Affect My Child Support?

This is where the term imputation of income comes into play. Basically, even if you haven’t worked in a significant period of time, a court can still assign you wages, even though you aren’t earning any. For example, the court can impute full-time minimum wage to a person if they have the ability and opportunity to work even though that person is not actually working. What this means is that your spousal support number will not be based on $0 income even though in fact, you are making $0 in income. Note however, that this is not a set-in-stone number; it can be adjusted down to part-time minimum wage if circumstances warrant it, or it can be more than full-time minimum wage if the supported spouse has a greater earning capacity. In other cases, a supported party with a serious medical condition that renders them incapable of working may indeed be imputed $0 in income. Whether or not income will be imputed to you or your spouse will depend on your unique circumstances.

The Role Of Domestic Violence in Spousal Support

Documented history of domestic violence may prevent a supported party from receiving spousal support. For example, if a person were to be found guilty of spousal battery, the otherwise supporting party may not have to pay them spousal support. Note however, that an actual conviction is not required. A plea of nolo contendere in a criminal case, and all other documented evidence of domestic violence may be used to deny spousal support.

 The fact is that any history within the past 5 years of domestic violence by either side in a divorce can have an effect on the spousal support number. It is important to keep in mind that women can indeed be perpetrators of domestic violence, and therefore can have their spousal support reduced or even eliminated altogether in severe enough cases. For more on domestic violence and restraining orders, read more here.

How Do Taxes Affect Spousal Support?

Remember that when filing your tax returns, you file a state return and a federal return (this matters). First, on your California return, if you pay alimony, you are allowed to deduct it. If you receive alimony, you must report it as income on your return.

For federal returns, you do not report whether you paid or received alimony. Prior to January 1, 2019, this was different, but these are the rules now.

As I said at the outset, there is much more to spousal support than is written here. For example, 4320 also says that the court will take into account other factors it deems "just and equitable." What does this mean? Well, it basically means that a court will try to determine what is fair when making an order for spousal support. 

If you have questions about spousal support, please call and we'll talk it over. 

 This page is not intended to be legal advice and does not constitute the establishment of an attorney-client relationship. 

%d bloggers like this: