What is Spousal Support?

       Spousal support is intended to try and help the party with less financial means maintain the prior marital lifestyle during and after a porce, which in reality is often not possible in many cases, especially in today’s economy.  In doing so, the Court will typically order the higher wage earning spouse to pay a portion of their earnings to the “disadvantaged” spouse, either on a temporary or permanent basis, depending largely on the length of the marriage and the needs of the disadvantaged spouse.  Under California Family Code § 4336, there is a rebuttable presumption that a marriage which lasted ten (10) years or more is a “marriage of long duration,” more typically called a long term marriage.  A “rebuttable presumption” simply means that one party can present evidence to try and show (rebut) that the marriage did not actually last the full ten (10) years and was thus not a long term marriage for support purposes.

       Under Family Code § 4336, the length of the marriage is calculated from the date of marriage to the date of separation (separation is considered the date where the parties clearly manifest their intent to no longer be married).  The Court may, however, consider any periods where the parties were separated and later reconciled their marriage (like when one of the parties moved out of the marital residence) in its calculation of the actual length of the marriage.  For example, if the parties got married, then lived together for five years, separated for six months, reconciled their marriage for another four and a half years and then finally separated to get a porce, the Court would subtract the six month separation period and consider the length of the marriage to be nine and a half years.  Where the Court finds that the marriage was of a long duration, absent a written agreement waiving spousal support or a prior Court Order, the Court retains infinite jurisdiction to make spousal support Orders, which can include awarding, changing or terminating spousal support.  Under § 4336 (b), the Court can, under certain circumstances, even find that a marriage that lasted less than ten (10) years is a “marriage of long duration.”

       It is important to note, however, that the California Courts have made it clear that 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.”  See In RE Marriage of Tinker (2007), which is an unpublished opinion.  As such, the issue of obtaining, modifying or terminating Spousal Support can be a somewhat complex area of the law, requiring more than a basic understanding of the process, especially given the incredible discretion Judges have in awarding support under Family Code § 4320, which is discussed in more detail below.

How does the Court Calculate Spousal Support?

       In its simplest terms, spousal support is based primarily on the gross income (income before taxes are taken out) of the parties and is then adjusted up or down depending on the specific circumstances of your case.  For example, if the parties own a house, then the party who is paying the mortgage gets an adjustment for payment of the property taxes and so on.  If the parties pay for health insurance, required union dues or support monies from a prior marriage, then other adjustments are made.  In the end, using various means, a support order is entered and the Court may, upon the request of the spouse who is going to receive the support, grant an “earnings assignment order,” which requires the support amounts to be withheld directly from the paycheck of the spouse who has been ordered to pay support and then paid directly to the supported spouse by the supporting spouses’ payroll department.

Pendente Lite Support Orders

       Usually, early in the porce proceedings, one of the parties will ask the Court to order “guideline” support and after a hearing on the matter, the Court will make what is known as a Pendente Lite (pending litigation) order, which is a temporary order.  Because this is a temporary order, the Court for expediency’s sake, can and usually does base its order on information entered into and then calculated by one of two computer programs that have been approved for use by the California Judicial Council, called the Dissomaster and Xspouse.  

       Both of these programs work in a substantially similar manner, in that they allow the input of the parties’ gross income & other information, and then produces two separate support numbers, one for spousal support and one for child support, if children were part of the calculation.  In fact, the actual mathematical calculations that the programs perform are set forth by the Judicial Counsel and codified by statute.  There are also, in addition to the support numbers, various numbers called “tactics,” which take into consideration alternate payment arrangements based upon income tax considerations that the parties may wish to negotiate over.  

       The Court may also be asked to deviate from the guideline support amount, based upon other specific criteria, but typically the support amount is directly based upon the calculations made by the Dissomaster or Xspouse program, at least when the support order is a temporary order.  Historically, the Dissomaster program has been used by the Court, but more recently, the Court seems to be using the Xspouse program more and more.  Once entered, a temporary support order will typically remain in place until a permanent support order is made that replaces it.  

Permanent Support Orders

       A permanent support order is typically entered in one of two ways.  The first way is when the matter is ultimately tried by the Court, following discovery, perhaps depositions and most of all the disclosure of mandatory information that must be exchanged between the two sides.  The other way is through an agreement called a stipulation, which is then made a binding Order of the Court.  At trial or in any setting where the Court is asked to make a permanent support order, the Court can no longer utilize the Dissomaster or Xspouse programs and must instead consider the numerous factors set forth in California Family Code § 4230.  

       Often in making a permanent support order, either after being asked by one side or the other, or at times upon its own motion, the Court will issue what is known as a Gavron Warning, which is a notice to the supported spouse that the spouse must make reasonable efforts to become self-supporting within a certain, specific time frame, usually one half the life of the marriage, or risk having a future support order entered that severely reduces or eliminates spousal support entirely.  Typically, the support awarded in a permanent support order will be substantially lower than a Pendente Lite (temporary order) for a number of reasons, but the primary reason is because a permanent spousal support order will have a net negative effect on the supporting spouse’s income tax thus lowering the amount available for payment of support.  For the purposes of payment of income tax, spousal support is a tax-deductible expense, where child support is not.

Family Code § 4230 Factors

       Family Code § 4230 sets forth the factors that must be considered by the Court when making a permanent support order.  Those factors are:

(a) The extent to which the earning capacity of each party is sufficient to maintain 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.

(b) 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.

(c) 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.

(d) The needs of each party based on the standard of living established during the marriage.

(e) The obligations and assets, including the separate property, of each party.

(f) The duration of the marriage.

(g) 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.

(h) The age and health of the parties.

(i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, 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.

(j) The immediate and specific tax consequences to each party. 

(k) The balance of the hardships to each party.

(l) 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.

(m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4325.

(n) Any other factors the court determines are just and equitable.

       During the hearing on permanent spousal support, it is not uncommon for one or both sides to request a deviation from the former “guideline support” amount based upon the 4230 factors and the specifics of the case.  A good attorney will fully brief the request for a deviation for the Court and provide a specific analysis in support of the requested deviation, whether up or down, depending on which client the attorney represents.  Unfortunately, many attorneys simply take the approach that the Court will figure it out, which is not only a cop out, but also places their client at risk of a Court order based on a partial understanding of the real issues involved in a case or one made by a lazy or overly busy Judge who just does not have the time to “figure it out.”  Don’t let a lazy attorney hurt your financial future – call the Law Offices of Werno & Associates at(714) 542-4466, or click here and let us do it right.

How long will my spousal support order last?

       The answer is that it all depends.  The simple answer is that for a long term marriage, which is traditionally defined as a marriage which lasts ten (10) or more years, the Court will often award spousal support for at least one half the length of the marriage (it used to be longer).  Keep in mind that the 4230 factors will often have a direct effect on the amount and length of the support and that the stated goal of the State of California is for a supported spouse to become fully self-supporting within a reasonable period of time.  Therefore, if you were married for 16 years, you could safely assume that the Court would award support for at least eight years and perhaps until your death, however there is no guarantee as to what any particular Judge might do regarding the amount of support ordered or the length of time the support will be paid.

       In a recent family law seminar, five Judges were given a written set of facts based upon a hypothetical case and were asked to decide how much support they would award the imaginary spouse based upon that set of facts.  Not surprisingly, each Judge said that they would order a different amount and the lowest support amount was 100% less than the highest support amount!  As such, it is impossible to give you an exact permanent spousal support amount estimate.

       Frequently, the parties enter into negotiations and reach agreements regarding literally every aspect of their porce.  Because of the uncertainties that exist regarding spousal support, it is not uncommon for the parties to agree to a particular dollar amount, so that they have absolute certainty regarding the support amount to be ordered and the length of time that that the support will have to be paid.  This is an extremely important decision in every porce and it’s important that you hire an attorney with the skill and experience like Don Werno to negotiate the best possible result on your behalf.

I don’t like my support amount, how can I get it changed?

       Often times, the Court will order a support amount that one party feels is too high or another party feels is too low.  At other times, circumstances change, such as the loss of a job, the birth of a child or a change in your medical health and expenses.  In those times, it’s not uncommon for a client to ask about modifying their support amount.  Unless there is a prior order that sets forth a different standard for review of an existing support amount, the Court will require the party who wants to change the support amount to demonstrate a “substantial change in circumstances”.  Typically, most people cannot meet this burden and for that reason the Court may not only deny a request for a change in support, but may also award the opposing party attorneys’ fees as a sanction to dissuade people from simply coming to Court just because are unhappy with a prior order.  This may seem like an extremely harsh approach, especially given the very real reality that life is expensive and money is usually tight, but without this type of rule, literally everyone who’s not happy with a particular support order would immediately come back to Court in an attempt to try to get a better deal.  As such, having an attorney who can honestly and effectively evaluate your circumstances and your chances for success is not only necessary, but essential.  In reality, regardless of whether your support order is changed, your attorney is going to get paid for simply making that request to the Court.  Therefore, it’s important that you hire an attorney who will honestly assess your true chances for a successful modification, which could just end up saving you money in the long run.

What if my Ex is Hiding Assets?

       Unfortunately, it’s not uncommon for someone who’s working under the table for cash or who is self-employed to try to hide income and assets from the opposing party, especially if it means that they can avoid paying support that they lawfully owe.  In reality, very few people are interested in paying the full amount of support they owe, especially to someone who they are porcing or to someone that they no longer have a relationship with.  Sadly, the same is often true regarding the payment of their child support obligations.  These types of cases require a particular level of knowledge and sophistication that Don Werno has developed over decades in the business world, and as an attorney.  In these types of cases, it’s important to understand how money works, meaning how it’s paid, used, and hidden.  For example, if a drug dealer is paid $50,000 in cash and then uses that money to buy a Porsche, the money can still be “traced,” because it hasn’t disappeared, it’s just changed form from cash into an expensive luxury automobile worth $50,000.  Depending on the unique facts of your case, different “tracing” methods may need to be employed to demonstrate to the Court that your Ex is hiding income for the purposes of evading their proper support obligations.  Sometimes, that proof is also used to have the Court hold the opposing party in contempt of Court for committing the crime of perjury by filing false income or asset statements, signed under penalty of perjury.  If this type of situation exists, we will also ask that the Court award you attorney’s fees and sanctions, payable by the offending party to try and compensate you for the added time and expense caused by the other parties lies and attempts to misrepresent their true income.  

What if my Ex is Unemployed or Underemployed?

       It’s not uncommon for an Ex to refuse to work, or to work less hours than they would normally work, in an attempt to lower their support obligation.  In fact, it’s a remarkable coincidence that many people lose a job or have their hours cut, just before their Court date.  In these types of situations, we can ask the Court to “impute” income to the other party, based upon their bad faith actions and true earnings ability.  In doing so, there is a very specific process that has to be followed before the Court can actually “impute” income and at the Law Offices of Werno & Associates, we know the process and we how to make that happen.

If my Ex Files for Bankruptcy will that affect my Spousal Support?

       Typically, if a party files for bankruptcy, it will have no effect on their ongoing spousal support obligation.  There are, however, some exceptions.

1) Where, for some reason, the spousal support debt (i.e. a domestic support obligation) has been assigned to a third-party, whether voluntarily, or because of some legal requirement.  See 11 United States Code § 523 (a)(5)(B) – Exceptions to Discharge;

2) Where the spousal support debt, despite being specifically designated as spousal support, is in fact not for spousal support.  In these types of situations, a Judge can look to the true nature of the debt, rather than at the label that the parties placed upon the obligation.  See In Re Marriage of Clements (1982) 134 Cal.App.737.  

       In fact, the Court in Clements specifically stated that “a discharge in bankruptcy shall release a bankrupt from all provable debts except debts due ‘to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child ....’ … An order in a decree of dissolution that a spouse pay certain community debts may be either in the nature of alimony or support, not dischargeable in bankruptcy, or in the nature of a property settlement, which is dischargeable in bankruptcy under present law.”  Emphasis added.

       As such, even though there is an automatic stay on the collection of debts following the filing of a Bankruptcy petition, when it comes to spousal support, the automatic stay will have no legal effect as spousal support debts are generally not dischargeable in bankruptcy, except in certain specific cases.

       We know that getting the “right” amount of Spousal Support” can be a daunting task.  We know it because we have been successfully helping our clients get the right support order based upon the unique circumstances of their cases for years.  If you would like to discuss how we can help you, feel free to call the Law Offices of Werno & Associates at(714) 542-4466 and remember, consultations are always free.

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