Orange County Spousal Support Attorneys

Guide to Spousal Support in California

The attorneys at Wilkinson & Finkbeiner specialize in representing Orange County clients involving issues of spousal support and alimony.  We have assisted clients in reaching spousal support settlements as well as litigated the issue of the payment of spousal maintenance in court.

The terms spousal support, spousal maintenance, and alimony are synonymous in California. There are two types of spousal support in any Orange County divorce case: temporary spousal support and permanent spousal support.

Temporary Spousal Support:

Temporary spousal support can be paid by the higher earning spouse to the lower earning spouse during the pendency of the divorce action. This means that a spouse could receive spousal support from the date of the initial filing of the divorce through the end of the divorce judgment. Permanent spousal support is spousal support that is paid after the entry of a judgment of dissolution.

Temporary spousal support is governed by Family Code §3600. Temporary spousal support is paid in any amount necessary for the support of the other spouse and is generally set in an amount to maintain the status quo. When setting temporary spousal support, the Family Court considers the supported spouse’s financial needs (i.e. expenses) as well as the supporting spouse’s ability to pay. The court will also consider each party’s income, the financial circumstances of the marriage, as well as the net disposable income after spousal support is paid when using a calculator such as X-spouse or Dissomaster.

Permanent Spousal Support:

Permanent spousal support is set based on the court’s consideration of all of the factors contained within Family Code §4320. These factors include but are not limited to: the marital standard of living, each party’s income or earning capacity, whether there was any interference with either spouse’s employment during marriage while caring for children, sacrifices made by the supported spouse to further or enhance the supporting spouse’s career or education, the supporting spouse’s ability to pay, the supported spouse’s needs, the marital estate’s assets and debts, the length of the marriage, any particular needs of children of the marriage, the age and health of the parties, whether there was any documented history of domestic violence, tax implications of a spousal support order and the court balancing any applicable hardships. Although these factors may not all apply to any particular case, the court will consider them all when setting permanent spousal support.

When setting permanent spousal support, the court will also consider whether the length of the marriage and will classify the marriage as either: a short-term marriage or a long-term marriage.

For more information about the differences between temporary and permanent spousal support, click here.

How Long Is Spousal Support Paid For:

Family Code § 4320 provides that if a marriage is less than 10 years from the date of marriage to the date of separation, then the court’s ability to award spousal support is limited to one-half the length of the marriage.  This is a general presumption that may be followed or not followed by the family court judge based on the specific circumstances of a particular case.  For example, we have seen cases where the court found that a nine year marriage was a “long term” marriage between the parties due to health issues suffered by one party during marriage, which required extended support beyond half the length of marriage.

Family Code § 4336 provides that if a marriage is 10 years or longer from the date of marriage to the date of separation, then the marriage is a long-term marriage. If the Court finds a marriage is a long-term, then the Court will reserve the ability (i.e. reserve jurisdiction) to award spousal support payable by one party to another for an indefinite period of time.

Once a permanent spousal support order is made, it will be modified only upon a change of circumstances taking place. See In Re Marriage of Stephenson.  Once a change of circumstances occurs, the Court will again analyze the Family Code §4320 factors when modifying support.

Is Spousal Support Taxed:

Regardless of whether spousal support is paid pursuant to a temporary order or a permanent order, spousal support is taxable to the supported spouse and tax deductible to the supporting spouse.  Of course, there are guidelines issued by the IRS (though the Tax Code) that presents several requirements for the payment of maintenance to be considered taxable to the recipient and tax deductible to the person making the payments.

These requirements include:

  • You can’t file a joint tax return with the person paying and receiving the payments.
  • The payments must be made in “cash” (this includes check, money order, etc.)
  • The payment is actually received by the recipient.
  • The marital settlement agreement or stipulated judgment cannot say that the payments are for something else.
  • You can’t live in the same household.
  • There is no obligation for payments to be continued to be made after the death of either the payer or recipient.
  • The payments are not for child support or property division.

IRS Publication 452 provides further details on the taxability of alimony payments.

What is Family Support:

Family Support is a special exception to the IRS rules that allow for the deductibility of payments that are for the purpose of both child and spousal support.  The two amounts are combined into one amount, typically larger than the total sum of child support and spousal support if calculated separately.  The entire family support amount is taxable income to the recipient and tax deductible to the party that pays.  Agreements for family support are quite rare given that child support is not taxable income to the recipient, and this type of payment makes the child support taxable income.

Can A Vocational Evaluation Be Ordered To Determine Spousal Support:

If one, or both, spouses is not working at the time of the divorce, or is not working to their full capacity, the court may order a vocational evaluation be conducted with the report being reviewed by the judge hearing the case (Family Code § 4331). The vocational evaluator does not determine spousal support, however.  Their role is to provide an expert opinion concerning the ability and opportunity to earn a living for one or both parties.  The vocational evaluator’s role is to look at the skills of the party, his or her educational background, work experience, and the available jobs for which the party might be able to work.

The report produced by a vocational evaluator is not evidence until the vocational evaluator testifies and the report is received into evidence, or when the parties stipulate that the report is admissible evidence.

Can A Spouse Cohabit With Another Person & Still Receive Spousal Support:

In the event one spouse is cohabiting with another person and their relationship is romantic (i.e. not a roommate-type situation), then there is a rebuttable presumption that the supported spouses need for spousal support is decreased or eliminated (Family Code §4323).

What are the applicable factors for permanent spousal support:

The applicable factors for permanent spousal support are found in Family Code Section 4320, which cover every conceivable fact relevant to a determination of spousal support including:

  • The amount of money each party can earn (earning capacity) relative to the standard of living established during the marriage, taking into account all of the following:
    (1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.
    (2) The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
  • 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.
  • The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.
  • The needs of each party.
  • The obligations and assets, including the separate property,
    of each party.
  • The duration of the marriage.
  • 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.
  • The age and health of the parties.
  • Documented evidence of any history of domestic violence between the parties or perpetrated by either party against either party’s child, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.
  • The immediate and specific tax consequences to each party.
  • The balance of the hardships to each party.
  • The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a “reasonable period of time” for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.
  • The criminal conviction of an abusive spouse.
  • Any other factors the court determines are just and equitable.

Case Law Applicable To Spousal Support Orders:

There are numerous cases that have interpreted the above statutes concerning temporary and permanent spousal support. A brief summary of certain applicable cases is as follows:

  • Richmond Order: A spousal support order that contains a step-down in the amount with a specific termination date of the support order.
  • Marriage of Reynolds: Once a spouse turns 65, the Court does not have the ability to order that spouse to work in order to pay spousal support.
  • Smith/Ostler: Bonus income is paid on a percentage basis when considered for purposes of spousal support.
  • Marriage of Vomacka: The Court has jurisdiction to extend the length of time spousal support is to be paid.

In another recent case, the California Appeals Court dealt with the issue of whether spousal support should be paid to a perpetrator of child abuse:

Marriage of Schu [Schu II] 16 DJDAR 12067 (12-6-16) (DCA 2)For purposes of denying permanent spousal support, under Family Code 4320, the court can consider acts of domestic violence, separate property owned by the perpetrating spouse, and any property in the perpetrating spouse’s name. In the Marriage of Schu, Mother exposed her own children to alcohol and pornography and even assaulting one of them, all with the goal of engaging in a sexual relationship with one of her children’s friends, a minor child. The trial court concluded that FC 4320 applied to the case and, considering the facts, denied spousal support to Mother. On appeal, the Court of Appeals believed Mother’s acts to constitute abuse under Family Code 6211 which defines domestic violence as abuse perpetrated against a child of a party and applied the abuse to its finding of domestic violence. The Court of Appeals then looked to Mother’s assets which included her own assets, including $160,000 and multiple bank accounts she held with her father. In fact, even after a vocational evaluation, Mother confirmed that she “would be all right no matter what.” The Court of Appeals considered Mother’s exposure of her children to alcohol, pornography, assault, and the substantial amount of Mother’s assets to conclude that there was more than enough in justifying a denial of spousal support under FC 4320. The Court of Appeals affirmed the trial court’s ruling.

What is a Gavron Warning:

The Court may issue, at any time, an order that the support spouse make reasonable efforts to become self supporting. This may either mean the support spouse must begin educating themselves or working in an effort to become self-supporting in the future.

At Wilkinson & Finkbeiner, our attorneys specialize in spousal support cases.  After carefully considering the facts and applicable law, we will inform you of your options related to the issue of spousal support.  This area of law is highly complex and you should always consult with an attorney about any issues related to spousal support in your case.  For a free case evaluation, contact our Orange County spousal support lawyers today.