Types of Spousal Support in California
California law permits several types of support for spouses going through a divorce – temporary, rehabilitative, and permanent support.
A spouse may request temporary support, which may be awarded until the divorce is finalized. The purpose of this type of support is to allow a lower income-earning spouse to cover living expenses while the divorce is pending. Courts will typically use a program to calculate this support rather than the California support guidelines and factors.
Rehabilitative support is the most common type of support and what people usually think of when thinking about spousal support. This type of support exists when one spouse earns more than the other, or has been the primary bread winner for the family while the other party did not work outside of the home, or worked less outside of the home. The goal of this type of support is to award the lower income-earning spouse enough funds to allow them time to gain skills or education that will allow them to enter the workforce and become self-supporting. In many cases, one spouse will have given up their ability to gain skills or education and have opted to care for the children, or be a home-maker. This type of support exists to level the playing field and allow the lower income-earning spouse to get to a point where they are self-supporting and no longer in need of spousal support.
Permanent support is the least common type of support. California Courts will typically only award this type of support to spouses exiting long term marriages, ten years or longer, where one spouse is unable to word due to advanced age or illness (California Family Code Section 4336.)
Short Term Marriage vs. Long Term Marriage
In California a short-term marriage is any marriage less than ten years. As such, a long-term marriage is a marriage of a duration longer than ten years. Typically, California Courts will permit spousal support for short-term marriages for half the length of the marriage, in years.
How the Court Determines Spousal Support
Gone are the days where spousal support was only awarded to women. As women have entered the workforce, some even being the primary bread winners, the Court is completely gender neutral in awarding spousal support. Either spouse can request support, or one or both spouses can waive support.
For temporary support, the court will look at financial information for each spouse including income, expenses, assets, and debts and run the information through a program, which will calculate support. An experienced family law attorney can also run these calculations for you.
For rehabilitative support and permanent support, the court will consider each spouse’s income and use the following factors to determine a support amount:
- Each spouse’s earning capacity;
- The extent to which the supported spouse contributed to the other spouse’s education, degree, or professional license during the marriage;
- The paying spouse’s ability to pay support – including earning capacity, earned and unearned income, assets, and marital standard of living;
- Each spouse’s debts and assets, including separate property;
- Length of the marriage;
- Supported Spouse’s ability to be employed without interfering with the care of the parties’ minor children;
- Each spouse’s age and health;
- If there is a documented history of domestic violence against either spouse or the children of the spouse’s;
- Tax consequences to each spouse;
- Balance of hardships to each spouse;
- A goal that the receiving spouse can become self-supporting within a reasonable period of time;
- Criminal convictions of an abusive spouse; and
- Any other factors that the Court wishes to consider. (California Family Code Section 4320).
An experienced spousal support attorney can help you assess these factors and prepare for a trial on spousal support in California.
Can I Change a Spousal Support Order?
Yes, either party can ask the Court to terminate or modify an existing support order, so long as the requesting party can prove a change of circumstances that is significant to payment of the support order.
How Does Support Get Paid?
The Court will make orders regarding how the paying spouse will get funds to the spouse receiving support. In some instances, the paying spouse might want to pay the support order in a lump-sum. Lump sum payments can be helpful to the paying spouse because it will end the need to make payments and negate the possibility of an increase in the support order later.
The Court most often orders payments to be made monthly, including payments spread out throughout the month to allow for income to come in for the paying spouse. The court may issue a withholding order to the paying spouse’s employer, where payroll will receive instructions to take out the spousal support amount from the paying spouse’s check before the remainder is released to them.
The law regarding taxation of spousal support recently changed. If the Court finalized a divorce before December 31, 2018, the IRS allows the paying spouse to include payments as a tax deduction and the receiving spouse must report the support received as income. However, if a divorce is finalized on or after January 1, 2019, the Tax Cuts and Jobs Act eliminated any tax deduction or income reporting requirements for Federal returns. This means that now, the paying spouse does not get a tax credit for spousal support paid, and the receiving spouse does not have to report support received as income on Federal returns.
A Pleasanton family law attorney can help tailor spousal support to the specific parties’ needs. Parties negotiating spousal support should consider the new tax changes before making any agreements. California state tax law does still require that the receiving spouse list the spousal support received for state returns, but the Federal rule still applies.
Contact Tierney Law Group, PC to speak with an experienced family law attorney in Pleasanton CA today at 925-362-3364. We can guide you through the divorce and support process and answer any questions you may have.
Katlin N. Law
Tierney Law Group, PC