Posts Tagged ‘Spousal Support’

California Divorce Blog–Alcoholism and the Alcoholic

December 2, 2014

Addiction issues are often the root cause of divorce. When a person is addicted to a substance they are not the same person. Unfortunately, this causes the entire family to suffer.  If you are an alcoholic, or are married to an alcoholic, you should be aware of the potential impact upon your divorce case.

The Court may consider the history of drug abuse when determining Child Custody.  In determining the child’s best interest, trial courts also must consider either parent’s “habitual or continual” alcohol abuse, their “habitual or continual” illegal use of controlled substances, or their “habitual or continual” abuse of prescribed controlled substances (as defined in California Health & Safety Code Section 11000 et seq.; See California Family Code Section 3011(d)).

Before considering allegations of a parent’s drug oralcohol abuse, the court may require “independent corroboration”—such as written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical and rehabilitation facilities, or other organizations providing drug and alcohol abuse services. (See California Family Code Section 3011(d)).

Under strict statutory conditions, the court may order any person seeking custody or visitation to undergo testing for the use of illegal controlled substances (as defined in California Health & Safety Code Section 11000 et seq.) or alcohol; and may order either or both parties to pay the costs of such testing. (California Family Code Section 3041.5)
(The statutory conditions are intended to address the constitutional concerns noted in prior case law that interpreted the then-existing Family Code as not authorizing compelled drug/alcohol testing in custody litigation (Wainwright v. Super.Ct. (Sinkler) (2000) 84 CA4th 262, 266-269, 100 CR2d 749, 752-754). 
If alcoholism or addiction issues are present in your Divorce case, it is important to seek immediate legal representation. The alcoholism may significantly impact the issue of child custody, child support and/or spousal support.  Please call Attorney Keith F. Simpson today to further discuss your legal matter at (310) 297-9090. You may also e-mail Keith Simpson at http://www.simpsonlaw.net. Thank you for reading this blog.
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California Divorce Blog–Child Support and Spousal Support

November 30, 2014

I find that the most commonly litigated issues relate to child support and spousal support. This is somewhat understandable. A recent case sheds some light on the aspect of “Imputing Income” to a non-working spouse or a spouse who is chronically underemployed.

In Charles McHugh v. Connie McHugh from the Fourth Appellate District from the State of California, Court of Appeal (Certified for publication on November 26, 2014), Mr. McHugh filed a motion to reduce his child support obligation because he lost his job as a commissioned salesman. In opposition, Ms. McHugh asked the court to increase his child support because Mr. McHugh lost his job for diverting business to his Father’s business. The employer had offered Mr. McHugh an opportunity to retain his job if he disclosed his misconduct and fully repaid restitution. The Trial Court denied Mr. McHugh’s request to reduce his child support and granted Ms. McHugh’s request to impute income to Mr. McHugh as though he were earning the same income as before.

Family Code section 4058, subdivision (b), grants trial courts discretion to set child support based on a parent’s earning capacity rather than actual income if the court finds the parent has the ability and opportunity to earn income at the level to be imputed. The court provided,”We affirm the trial court’s order exercising its discretion to impute income under section 4058, subdivision (b), because substantial evidence supports the findings that (1) Charles had the ability and opportunity to keep his job; (2) his termination was a voluntary divestiture of resources required for child support obligations because of his misconduct in diverting business to his father’s company to avoid his support obligations and deliberately failing to satisfy his employer’s conditions for keeping his higher paying job; and (3) imputing income to Charles was in the child’s best interests.”

The Family Code has granted the trial court discretion when imputing income to a parent based on his or her “earning capacity.” (§ 4058, subd. (b).) Specifically, section 4058, subdivision (b) states, “The court may, in its discretion, consider the earning capacity of a parent in lieu of the parent’s income, consistent with the best interests of the children.”

As the moving party seeking to modify the existing support order, Charles bore the burden to show not only that he lost his Amcor job, but also that he lacked the ability and opportunity to keep that job and continue earning at the same level. (Bardzik, supra, 165 Cal.App.4th at p. 1304; Eggers, supra, 131 Cal.App.4th at p. 701.) Here, it is undisputed Amcor fired Charles, but it also is undisputed Amcor gave Charles the opportunity to keep his job if he satisfied three conditions: (1) fully disclosing all information about his improper conduct; (2) paying Amcor restitution for the business he diverted; and (3) entering into a last chance employment agreement with Amcor. Accordingly, to obtain an order reducing his support obligations it was Charles’s burden to present evidence showing he could not satisfy these conditions, and therefore did not have the opportunity to keep his job.

We can all learn important lessons from this case when it comes to seeking a modification of support. First, people do not realize when they seek a support modification that it is possible for the court to modify in the other direction. For example, a party seeking to modify support downward may be surprised to have the court modify the support upward.  Second, a party seeking a downward modification due to job loss must show that there was no possibility of retaining the job. Third, the court can impute income because California Family Code Section 4058 allows for the Court to set Child Support based upon a party’s earning capacity as opposed to actual income. Many people are surprised to learn this.

If you have any questions regarding Child Support, Spousal Support or Family Law, please call Attorney Keith F. Simpson today at (310) 297-9090. The Law Offices of Keith F. Simpson, A Professional Corporation, is a full service family law firm located in Manhattan Beach, California. You may also view the website http://www.simpsonlaw.net to contact Attorney Keith F. Simpson today!

California Divorce Blog–Vocational Examination

September 6, 2014

I find that a Vocational Examination is typically necessary in cases where one spouse is either unemployed or underemployed.  The reason is that it is difficult to otherwise produce evidence in court to impute income to the non-working spouse.  The purpose of imputing income to the non-working spouse is to attempt to reduce the working spouse’s monthly child support and/or spousal support obligation.

The fundamental purpose is to obtain an expert’s assessment of a spouse’s ability to obtain employment based upon his or her age, health, education, marketable skills, employment history and the current availability of employment opportunities. To that end, the examination is supposed to focus on an assessment of the party’s ability to obtain the type of employment that would allow the party to maintain herself or himself at the marital standard of living. (See Family Code Section 4331(a)).

Vocational examination results showing the supported spouse is capable of being employed at any income level—albeit below the marital standard of living—are also clearly relevant (e.g., may indicate a step-downorder is appropriate). [See Marriage of Schmir (2005) 134 CA4th 43, 53, 35 CR3d 716, 723—vocational examiner’s testimony supported imputing $2,500/mo. income to obligee spouse].

If you find that your spouse is either unemployed or underemployed, you may want to consider a vocational examination. To further discuss your case please call Attorney Keith F. Simpson today at (310) 297-9090.  Keith F. Simpson is a Family Law Attorney in Manhattan Beach, California. You may also contact Attorney Simpson at http://www.simpsonlaw.net for your free consultation.

California Divorce Blog–Child Support, Spousal Support, Taxes and Wage Withholding

August 4, 2012

I am often asked how payment of Child Support and Spousal Support impact taxes.  Simply stated, Child Support is not tax deductible to the person paying Child Support. Therefore, the person receiving the Child Support is not taxed on the money received for Child Support. The reason for this is that Child Support is not considered to be income.

Spousal Support is considered to be income for tax purposes. Therefore, the person paying Spousal Support receives a tax deduction for the amount paid as Spousal Support. Similarly, the person receiving Spousal Support is taxed on the amount of Spousal Support paid because the Spousal Support is considered to be income.

I am also asked about how an employer is supposed to withhold child support or spousal support from an employee paycheck.  Before an employer deducts money from an employee’s paycheck for support, the employer must first determine the Employee’s “Disposable Income”.

How to Determine Disposable Income

There are two basic steps to determine how much to withhold for child support from an employee’s income: calculating disposable income and calculating allowable disposable income.

  1. Disposable Income = gross pay – mandatory deductions
    • Disposable income is the amount of earnings remaining after subtracting mandatory deductions from an employee’s gross pay.
    • Mandatory deductions include federal, state and local taxes, unemployment insurance, workers compensation insurance, state employee retirement deductions, and other deductions determined by state law.
    • Note that disposable income is not necessarily the same as net pay. An employee may have a deduction taken from his pay that is not mandatory, such as union dues or a credit union car loan payment, or some other voluntary allotment.
  2. Allowable Disposable Income = disposable income x CCPA % limit
    • Allowable disposable income is the maximum available for child support withholding. The ordered child support amount will usually be less than the allowable disposable amount and then the ordered amount maybe withheld in full. Even if the withholding order specifies a higher payment, the allowable disposable income is the most that may be withheld.
    • The Federal Consumer Credit Protection Act (CCPA) sets limits on withholding from an employee-parent’s disposable income based on his/her current family situation and child support payment history. The CCPA protects the employee from having an excessive amount withheld. (Some states have enacted laws that provide even more protection to the employee-parent’s income, although most states follow the federal limits.)
    • The withholding limits set by the federal CCPA are as follows:
      • 50% Supports a second family, with no arrears or < 12 weeks in arrears
      • 55% Supports a second family, and more than 12 weeks in arrears
      • 60% Single, with no arrears or < 12 weeks in arrears
      • 65% Single, and is more than 12 weeks in arrears.

Allowable Disposable Income Example

  • Weekly gross pay is $760
  • Weekly child support due is $295
  • Mandatory deductions total $151
  • Employee-parent is single and does not owe back child support

Note the following differences between net pay and disposable income in this example. The amount of disposable income, $609.00, is used to determine child support withholding limits, rather than the net pay, $469.

 

Disposable Income Net Pay
Gross Pay $ 760.00 $ 760.00
Deductions Less mandatory deductions only Less deductions
Federal income tax – 95.00 – 95.00
FICA – 45.00 – 45.00
Medicare – 11.00 – 11.00
Union dues – 10.00
Savings bonds – 25.00
Union pension – 30.00
Credit union car loan – 50.00
$ 609.00 $ 469.00

 

Step 1:
Gross pay – mandatory deductions = disposable income:
$760 – $151 = $609.00
Step 2:
Disposable income x CCPA % limit = allowable disposable income:
$609 x 60% = $365.40

Note that 60% is the applicable CCPA limit because the employee-parent is not supporting a second family and does not owe any back child support.
Allowable disposable income is the maximum available for child support withholding.
Allowable disposable income (from Step 2 above) is 365.40.

  • $365.40 > $295.00, so the full $295 is withheld for child support.

If you take the same example but increase the weekly child support payment to $400, you may not withhold the full amount due. By law, you may only withhold a maximum of $365.40. This means that the employee will fall behind by $34.60, and will be “in arrears.” Some states charge interest on the overdue amounts. The employee has the option of paying the underpaid amount directly to the issuing agency if he or she does not want to fall into arrears, or the employee may ask that the employer “voluntarily” withhold the unpaid amount.

Application of the Requirement

If there is enough allowable disposable income, the employer should remit the full amount of current support due for each order. Sometimes an employee’s earnings do not stretch far enough to pay all of his or her orders. If there is not enough allowable disposable income, the allocation method of the employee’s principal place of employment (state of official duty station) must be followed to determine how much to pay for each order. States use one of two methods to allocate withheld payments among multiple withholding orders:

  1. Prorate by allocating a percentage to each order based on the total dollar amount of current support ordered; or
  2. Share equally by dividing the allowable disposable income by the total number of orders.

Multiple Income Withholding Orders – Same Employee and Different Children

If there is more than one withholding order, federal regulations require that some money must be paid to each order for current support. In addition, states have enacted laws specifying the method for allocating money toward current support due for each order. Thus, some money must be allocated toward all orders. The orders should not be paid on a “first come, first served” basis.

Example:

  • Order A current support owed: $ 220/biweekly
    Arrears owed: $ 50/biweekly
  • Order B current support owed: $ 200/biweekly
  • Order C current support owed: $ 180/biweekly
  • Employee’s disposable income: $1000/biweekly
  • Allowable disposable income: $550

Because employee is supporting more than one family and is in arrears, the CCPA limit is 55% x disposable income (55% x $1000 = $550)

Withholding:

  • Total current support owed: $600/biweekly
  • Total arrears owed: $ 50/biweekly
  • There is not enough allowable disposable income ($550) to withhold the entire amount of current support due for all these orders ($600). Therefore, nothing may be withheld to satisfy the arrearage.

The issue of withholding Child Support and Spousal Support can be a tricky issue whether you are a party to a legal action or an employer tasked with the legal duty to withhold the proper amount of support. Please contact Attorney Keith F. Simpson today to discuss your legal issue at (310) 297-9090 or visit http://www.simpsonlaw.net to view more information.

California Divorce Blog–Spousal Support

May 31, 2012

Spousal Support Also Known as Alimony:

Spousal support or alimony is the term used for payments from one spouse to another after a divorce for the purpose of maintaining the former spouse at a standard of living similar to that enjoyed during the marriage. You may be more familiar with the word “alimony” which is the same as “spousal support”. Spousal support laws seek to prevent a divorced spouse from suffering from a decrease her standard of living. Often times after divorce, one spouse is untrained or has been out of the workforce for such a significant amount of time that it would be difficult for them to quickly attain a job or professional position that would allow them to maintain the standard of living that they may have had while they were married.  Spousal support in California is meant to bridge the gap between the time it takes for that spouse to obtain employment or resources for that spouse to met her own needs.  Throughout these questions and answers the words “spousal support” and “alimony,” are used interchangeably

  Concerns About Spousal Support:

Spousal support can be a tremendous strain on your finances. It is a highly litigated issue because of the possible future expense you may owe your spouse.

Use of DissoMaster Program by Court:

While the court may use a computer program or guideline to calculate a temporary spousal support amount pending trial in the matter, the court is not allowed to use the DissoMaster in calculating permemenent support.  In re Marriage of Olson (1993) 14 Cal.App.4th 1 (Permanent spousal support order based on DissoMaster reversed for failure to consider all 4320 factors).

The Court’s View of a Cheating Spouse:

California is considered a no-fault jurisdiction.  Accordingly, the court will not consider your spouse’s infidelity in determining spousal support.  However, if your spouse is cohabitating (living under the same roof with a spouse of the opposite sex in a romantic relationship) the court must presume that she has decreased need for spousal support.

Attorney Fees and Costs:

Not necessarily!  It’s always a good idea to try to negotiate an out of court settlement to save legal fees, but often there are significant advantages to actually litigating spousal support.  In many cases if you reach an out of court settlement the spousal support order is indefinite in nature—it continues on forever.  Also oftentimes such out of court settlements do not establish the “marital standard of living” an exact dollar amount that is necessary for your spouse to have in order for them to continue to maintain the “marital standard of living.”   If you don’t have such a finding regarding the dollar amount necessary to satisfy the standard of living it will be very hard to come back in the future and seek to modify or terminate the spousal support.  Oftentimes such settlements don’t take into account your spouse’s earning capacity as established by the testimony of a licensed vocational counselor.  And often there is no “Gavron Warning”.  If you look at this issue as a long-term obligation that can span several decades, then you may have a significant advantage in litigating alimony to ensure that you have set the case up correctly for eventual termination of spousal support.  All to often the paying spouse is in a hurry to get their divorce over with at all costs, and does not consider the long-term implications of paying spousal support for 10-20 or more years into the future with no relief in site.  Litigation often offers tremendous advantages in resolving spousal support in your favor.

Relevance of a Long Term Marriage (In Excess of 10 Years):

In California marriages of 10 years or more are considered marriages of long duration, and as such the court is not allowed to set a definite termination date for spousal support at the time of trial.  Many people and attorneys misinterpret this rule to mean that California has lifetime spousal support in marriages of long duration.  This is clearly NOT the case as is 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 postdissolution support for only so long as is necessary to become self-supporting.”

In re Marriage of Schmir (2005)  134 CA4 432.  Also note that while the court can not terminate spousal support by a certain date, they are still allowed to provide that spousal support will terminate by a certain date unless the supported spouse makes application to extend the support on or before that date.  In marriages that are just over the 10 years, or where the spouse has excellent career prospects, this is often a fruitful strategy to pursue.  In marriages of less than ten years spousal support is presumed to no longer than for half the length of the marriage.

Effect of Retirement on Spousal Support:

Under a recent case called In re Marriage of Reynolds (1998) 63 Cal.App.4th 1373  you are entitled to retire at age sixty five and can not be required to work to support your spouse beyond that age.  Arguably if you are forced into early retirement you may be able to convince the court that you should not have to continue to pay support.

Effect of Raise on Spousal Support:

No.  Under a case called Hoffmeister II the court can not consider your increased post-seperation earnings as a  basis for awarding support beyond that which is justified by the marital standard of living.

Effect of Reduced Income on Spousal Support:

YES. If you have been involuntarily terminated, or had your income reduced, you should be able to receive a temporary abatement of support.  And 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 even termination.

Effect of Self Employment on Spousal Support:

YES.  If your business has been effected by the recession and you are earning less you should be able to lower your spousal support obligation.

Effect of Bonus Income on Spousal Support:

These kind of orders are known as “Smith-Ostler” orders and are very problematic in the area of spousal support.  First, unless there is an annual cap these orders may end up providing your former spouse with way more spousal support than is consistent with the marital standard of living.  Second, these orders are difficult to enforce and calculate.  While there are some circumstances where these type of orders are necessary, they are not beneficial to the spouse that is paying spousal support.

Effect of Unemployed Spouse on Spousal Support:

Well you can’t force them to get a job, but you can obtain a vocational assessment and if they have not sought employment within a reasonable period of time you can have the court consider lowering or terminating their support.  They can also be “imputed” income, e.g. the court can assign them with fictional income if you can prove that they are purposefully avoiding employment and that there are positions available consistent with their abilities.

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

Yes.  Oftentimes I see very non-specific claims of disability for “stress” or “depression” and the former wife claims she can not return to the workforce due to these types of conditions.  In other cases there may be a valid disability but the disability that may impact certain types of employment, but there may be other fields that are available.  For instance, someone who has a back injury may not be able to lift heavy boxes but may be able to work at a computer terminal.  In many cases I recommend that we obtain an Independent Medical Evaluation regarding the spouse’s medical condition to see what limitations exist, if any.  And once the Independent Medical Evaluation is completed we then retain a licensed vocational counselor to make recommendations as to what type of employment is available taking these limitations into consideration.

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.

Can I avoid paying support by declaring bankruptcy?

Spousal support obligations are generally non-dischargeable in bankruptcy.  Filing bankruptcy will not help you avoid spousal support.

Will I get any relief from support through taxes?

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

My ex-spouse has started living with her new lover. Can I use this to reduce or end support?

YES.  This situation is known as cohabitation and is generally a good reason to significantly lower if not totally eliminate spousal support obligations.

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 her remarriage.  You may need to obtain an order terminating a wage assignment if there is a wage-assignment in place.

If you have any questions regarding your California divorce matter please contact attorney Keith F. Simpson in Manhattan Beach, California at (310) 297-9090 to discuss your matter today.

http://www.simpsonlaw.net

http://www.caldivorce.net

California Divorce Blog–Child Support

February 15, 2011

In California Child Support is money paid from one parent to the other parent to assist with the expenses associated with child rearing.  The California Family Code refers to child support as a support obligation owing on behalf of a child.  (California Family Code Section 17402)  Generally speaking, California law required both parents to support their minor children “in the manner suitable to the child’s circumstances.” (California Family Code Section 3900)

All minor children of the parents are owed a duty of child support.  The obligation to support a child is not limited to the parents’ marital status nor is it limited to biological offspring!  (California Family Code Section 7602; White v. Marciano (1987) 190 CA3d 1026, 1031, 235 CR 779, 782)

Once the issue of parentage is determined, the court will move to decide the issue of child support.  A finding of parentage occurs when the court makes a finding as to who are the child’s legal parents.  In California, courts will use a program called Dissomaster which is a computer program.  The judge will input data into the Dissomaster program to determine the amount of child support one parent will be ordered to pay the other parent.  The types of data include 1) the amount of custody each parent has 2) the respective incomes 3) the monthly expenses 4)hardship expenses 5) multiple other expenses and data.  The Dissomaster will provide a child support number which the court will usually accept and order the supporting parent to pay the non supporting parent.

The guideline formula for computing child support is provided algebraically as follows:  CS = K [HN -(H%) (TN)] (See California Family Code Section 4055(a)).

CS equals Child Support;

K equals the amount of income to be allocated for child support as set forth in Family Code Section 4055(b)(3);

HN equals high earner’s net monthly disposable income;

H% equals approximate percentage of time high earner has or will have primary physical responsibility for the children compared to the other parent (where the parents have different time-sharing arrangements for different children, H% equals the average of the approximate percentages of time the high earner spends with each child);

TN equals total net monthly disposable income of both parties. (See California Family Code Section 4055(b)(1).

Child support, unlike spousal support, is not tax deductible to the paying spouse.  Furthermore, child support is not taxable as income to the parent receiving the child support.  It is important to have your attorney request child support payments at the outset of your divorce case if you are eligible to receive child support.  The issue of child support is a complex matter and should be discussed with your attorney.  For further questions, please contact Attorney Keith F. Simpson today at 310-297-9090 or read more about California divorce and family law at his websites http://www.simpsonlaw.net or http://www.caldivorce.net

Keith F. Simpson is a Manhattan Beach, California lawyer who practices law throughout the State of California. Call Attorney Keith F. Simpson today with your child support or divorce question.

California Divorce Blog Temporary Spousal Support

January 1, 2011

As a divorce attorney, I often find the need to obtain temporary court orders for spousal support for my clients.  When a divorce or legal separation action is pending, the court may order either spouse to pay any amount necessary for the support of the other spouse pursuant to California Family Code Sections 4320(i), (m), and 4325.  An action is “Pending” from the time the petition is filed until its final adjudication on appeal or until the time for appeal has ended.  The Court may make a temporary spousal support order retroactive to the date of filing of a petition requesting spousal support.

DETERMINING TEMPORARY SPOUSAL SUPPORT

So, how does a court determine who will pay and how much spousal support should be paid?  There are two basic factors for the court to consider in awarding temporary spousal support.  First, the court evaluates the applicant’s need for support and the other party’s ability to pay.  (See Marriage of Stich (1985) 169 CA3d 64, 74, 214 CR 919.   Temporary spousal support may be ordered in any amount based uon the party’s need and the payor’s ability.  Findings of the trial court on need and ability are reviewed under the abuse of discretion standard.  (See Marriage of Wittgrove (2004) 120 CA4th 1317, 17 CR3d 489)

Generally, courts take the view that the purpose of temporary spousal support is to enable the supported spouse to live in his or her accustomed manner pending disposition of the action (See Estate of Fawcett (1965) 232 CA2d 770, 784, 43 CR 160.  See also Marriage of Wittgrove, supra; Marriage of Winter (1992) 7 CA4th 1926, 1932, 10 CR2d 225) However, courts do recognize that incomes are often insufficient to support two separate households and still maintain the same standard of living during a pending divorce.

Courts typically refer to “Guidlines” in an effort to determine temporary spousal support. A trial court’s use of guidelines based solely on affirmed income is appropriate.  See Marriage of Winter (1992) 7 CA4th 1926, 1933, 10 CR2d 225.  However, the Court may not use “Guidelines” when determining long term spousal support.

A temporary spousal support order is terminated by the issuance of a judgment, dismissal of the pending action or expiration under its own terms.  An order for temporary spousal support may be modified  or terminated by the court at any time.  Modification or termination may not, however, affect the payor’s liability for payments that accrued before the notice of motion or order to show cause to modify or terminate was filed.  (See California Family Code Section 3603)

Temporary spousal support may be modified without a showing of a change of circumstances (unlike post judgment spousal support).  See Sande v. Sande (1969) 276 CA2d 324, 329, 80 CR 826.

Current circumstances: In evaluating the parties’ respective needs and abilities to pay, the court cannot engage in speculation. Its order must reflect the present facts and circumstances, based on evidence in the record and inferences reasonably drawn therefrom at the time of the hearing. [Marriage of Prietsch & Calhoun (1987) 190 CA3d 645, 656, 235 CR 587, 590;Marriage of Baker (1992) 3 CA4th 491, 498, 4 CR2d 553, 557; seeMarriage of Rosen (2002) 105 CA4th 808, 824, 130 CR2d 1, 10—abuse of discretion to fix spousal support on basis of self-employed obligor’s average income 2 years before support hearing where evidence at time of hearing showed substantially lower income]

“[A]n order for spousal support must be based on the facts and circumstances existing at the time the order is made.” [Marriage of Tydlaska(2003) 114 CA4th 572, 575, 7 CR3d 594, 595(emphasis added; internal quotes omitted)—request to modify spousal (and child) support properly denied for failure to file current income and expense declaration.
Special rule for modifications based on unemployment:A modification or termination of spousal support based on a spouse’s unemployment “shall be” made retroactive to the laterof the date of service of the OSC/motion to modify or terminate or the date of unemployment, “unless the court finds good cause not to make the order retroactive and states its reasons on the record.” See California Family Code § 3653(b).  What amounts to§ 3653(b) “good cause” for nonretroactivity is left to case law development. The only case law on the point to date, however, involves a child support modification and the court’s analysis placed heavy emphasis on the policy underpinnings of the statewide child support guideline which would not factor into a strictly spousal support modification; quite the contrary, the policy concerns underlying spousal support are entirely distinct from those associated with child support. Undoubtedly cognizant of that, the court in this case expressly stated it was not offering any opinion on the § 3653(b) “good cause” issue in instances not involving child support. [SeeMarriage of Leonard (2004) 119 CA4th 546, 560, 14 CR3d 482, 492, fn. 10]
I hope this blog regarding temporary spousal support has been informative. Please do not hesitate to contact Attorney Keith F. Simpson to discuss your divorce case today at (310) 297-9090.  The Law Offices of Keith F. Simpson, A Professional Corporation is located in Manhattan Beach, California.  Please also visit http://www.simpsonlaw.net or caldivorce.net for further information.

California Divorce Blog (Spousal Support Options)

September 18, 2010

Recently it seems that many of my cases involve Spousal Support (formerly known as “alimony”). In fact, many cases seem to hinge on the issue of spousal support. I mean that all other issues can be resolved with the exception of spousal support. Spousal support can be, and often is, an emotional issue. Think about it. One spouse is faced with the prospect of breaking up a “lifetime partnership” with the other spouse but may be on the hook for paying spousal support for Life! This can often be difficult to imagine but a reality nonetheless.

So what is spousal support? Spousal support is a court order for one spouse to pay any amount necessary for the financial support of the other spouse (See California Family Code Section 4320). The Court may make temporary spousal support orders from the time the Divorce lawsuit is filed. At time of trial the Court may make permanent (lifetime) spousal support orders. This means that one spouse may be ordered to pay the other spouse support for the remainder of his or her life! There are many factors which the Court will consider when determining the amount of spousal support and the duration. A rule of thumb is the longer the marriage, the more likely the Court will order lifetime spousal support. Any marriage with a duration of ten years has been held to be a “long term marriage” and therefore makes is more likely that a court may order lifetime spousal support.

There are many methods to resolve the issue of spousal support. Typically, the spouse who is the higher income earner will be the spouse who is ordered to pay spousal support. Some options for resolving spousal support are as follows: 1) Agree upon a monthly spousal support amount for the remainder of the supported spouse’s life (or until the supported person remarries or the paying spouse dies). 2) Agree upon a monthly spousal support amount for a defined period (i.e., pay spousal support for five years). 3) Pay a one time lump sum spousal support payment. This option can be a double edged sword and may be a gamble. For the paying spouse, the gamble is that they are betting that by paying a one time lump sum payment the total sum will be less than if they paid a monthly amount for life. If the supported spouse immediately remarries or passes away then the paying spouse will have vastly overpaid the amount of spousal support necessary. The same is true of the supported spouse (i.e., the risk of taking a one time lump sum payment as opposed to spreading monthly payments over a lifetime period). Who knows how long both spouses will live. What is the condition of their health? Does the supported spouse want to remarry in the near future? These are all questions which parties and their counsel should consider when evaluating the tricky and emotional issue of spousal support.

If you are facing difficult decisions regarding spousal support please call Attorney Keith F. Simpson today to discuss at (310) 297-9090. Thank you for reading my California Family Law Blog!