Category: <span>Spousal Support</span>

How to Enforce Spousal Support in California

February 5, 2021February 1, 2021
by Briana White

When your ex refuses to pay spousal support, is late on payments, or doesn’t give you the full amount, this can be understandably frustrating. Especially since the entire point of spousal support is to help a homemaker become economically independent after a divorce. Without this reliable, financial assistance, getting back on your feet becomes much more difficult.

If a judge included spousal support in your divorce order, it isn’t optional. Your ex might not like you, or agree with the verdict, but the hard truth is, that court orders are as iron clad as any other law—the only difference being, that it’s personalized to you. And California courts don’t look kindly on law breaking.

If you need to enforce spousal support in California, here’s how that might look in your situation.

Enforcing Spousal Support: Earnings Assignment

The easiest and fastest way to enforce spousal support in California, is to file an earnings assignment with your county clerk immediately after your divorce is finalized. An earnings assignment—also known as wage garnishment—is a legal document that requires your ex’s employer to pay you spousal support before giving them their take-home pay. This type of enforcement is automatically available to every California divorce.

Filing an Earnings Assignment in California

The only requirement to filing an earnings assignment, is that your divorce is finalized. Once you have your support order from the judge, activate your earnings assignment by completing:

A Findings and Order After Hearing (Form FL-340);
Any of the required attachments; and,
An Earnings Assignment Order for Spousal or Partner Support (Form FL-435).

Upon completion, take the finished forms (and attachments) to your local clerk for signatures. After everything has been processed, you can pick them up and have copies properly served to both your ex and his or her employer. This is done via mail, and must be initiated by someone who is not a party to the case (meaning: you can’t do it yourself). Make sure to have your server fill out two proof of service forms (one for your ex, and one for the employer), as these will also need to be filed with the clerk.

Earnings Assignments Are Not Required

Although convenient and efficient, wage garnishment isn’t actually required. If both parties agree, an earnings assignment can always be “stayed,” or rather: put on hold. Though, it’s important to note, that a stay of earnings can always be reversed, if proper payments are not made on time in the future.

How Long Before an Earnings Assignment Takes Effect?

Once everything has been filed and served, your ex’s employer will have ten days to begin deducting spousal support from the paycheck. If they do not, the employer could be held liable for payments in your ex’s stead.

Enforcing Spousal Support in California: Other Tactics

If your ex falls behind on payments, or you are having trouble with an employer not meeting the terms of a valid earnings assignment, you may need to involved the court again. In these situations, a judge might reinstate an earnings assignment, or possibly hold an employer liable for noncompliance, if applicable. During this process, you will likely need to make an accounting of all missed payments, so that the increased amount can be included in the amount owed.

While it’s possible for you and your attorney to do these things on your own, if you are still having problems, at this point you might also want to consider soliciting outside help.

Local Child Support Agency (LCSA)

One way to get help enforcing spousal support in California, is to open a case with your local child support agency (or LCSA). The LCSA is authorized to help enforce orders of both spousal support and child support, and they can do so at no charge to you.

The biggest benefit to using the LCSA, is the arsenal of enforcement tools they have at their disposal—tools that certainly aren’t available to the average citizen. To enforce spousal support in California, the LCSA can:

Report all late and missed payments to major credit reporting agencies, detrimentally effecting credit scores;
Notify the U.S. State Department, who can place a holds on the passport of any individual owing $2,500 or more in support payments;
Put a lien on your ex’s land or house, so that if the property is sold, profits can’t be collected on the proceeds until support payments are made;
Suspend any state-issued licenses, including any driver’s, business, or professional licensures your ex might have;
Use the Franchise Tax Board to collect money from bank accounts, real property, deposit box cash, or even vehicles owned;
Notify the IRS to take support payments out of tax refunds before they issue anything to your former spouse;
Take the owed support out of unemployment benefits, or workers compensation; and even,
Claim lottery winnings—if your ex happens to be so lucky. (And there’s definitely some satisfying karma in that, we think.)

As you can see, the tactics used by the LCSA are much more motivating than anything you can do on your own, and since they’re available at no cost to you, it might make a lot of sense to just skip the drama, and involve them in your case as soon as possible.

Contempt of Court

In extreme cases, it might be necessary to enforce spousal support by holding your ex in contempt of court. Unlike divorce cases, which are held in civil court, a charge of contempt is a very serious criminal charge, and could result in jail time.

When deciding on contempt, the judge will analyze whether or not the support was withheld on purpose—particularly if your ex was able to pay, but just decided not to. Because while you can’t (technically) get thrown in jail for being in debt, intentionally ignoring a court order can definitely get you there. This is usually a measure of last resort, though, and most judges will attempt to find a reasonable solution before putting anyone behind bars.

Spousal Support Modification

Because there are such serious consequences attached to not paying spousal support, if you are on the paying end and cannot fulfill the court’s order, it’s important you notify them as soon as possible. The court understands that life is unpredictable, and circumstances change. That’s why there are ways to modify a spousal support agreement—ones that don’t involve enraging the Powers at Be for not paying (which, really, is never a good idea).

Communication is the biggest key, here. As soon as you are aware of the change in circumstance, don’t wait. Notify the court, and fill out the necessary forms to initiate a hearing to modify. Amount changes cannot be applied retroactively, so acting fast is critical, as you’ll still be on the line for the original amounts, however long it takes you to get the wheels rolling.

Depending on the reasons for your request, the court may reduce the amount, though they’re unlikely to eliminate altogether.

Attorneys to Enforce Spousal Support in California

For many divorcees, spousal support is a critical means of income in the post-divorce era, and not receiving these funds in full and on time can be extremely stressful and financially crippling.

If you are entitled to receive regular spousal support, and are not getting it, we can help. Call us at (209) 989-4425, or get in touch online to schedule your consultation today. With our assistance, we can make sure you receive the funds you’re entitled to, without the stress and headache of going it alone.

Spousal Support

Can Spousal Support be Garnished?

January 26, 2021February 1, 2021
by Briana White

As everyone with children knows, raising kids is a full-time job. Because it requires so much mental and physical energy, it’s not uncommon for one spouse to temporarily set aside career aspirations, and devote all his or her available attention to homemaking tasks. While this can be a great solution for some families, the downside is that the employability of the homemaker invariably suffers.

To make up for these career sacrifices, California courts will often include a provision for spousal support in divorce orders. This money is meant to compensate a homemaker for their considerable, non-monetary contributions to the family, and aid them in getting back into the workforce. And, since it’s an official court order, refusing to pay spousal support could put you in dire straits.

In California, spousal support can be garnished from wages. When this happens, your employer would be legally required to make payments before giving you your take home pay. Here’s a little bit more about how spousal support is garnished, some of the other consequences of not paying alimony, and why it’s really not a good idea to default on these payments.

Determining Spousal Support in California

To start off, spousal support, or “alimony,” is by no means a foregone conclusion in divorce. In determining whether or not these funds are needed, California courts will review a number of different factors, some of which are:

The standard of living in the marriage;
Marketable skills of both spouses;
How much the homemaker’s income has been impaired by unemployment;
If the homemaker helped contribute to the career spouse’s education (and by how much);
The homemaker’s ability to get employment without hurting the interests of dependent children;
Obligations and assets of both parties (including separate property); and
How long the marriage lasted.

Since these situational factors differ from couple to couple, so does the need and amount of spousal support in each situation. A homemaker who is independently wealthy, for example, probably doesn’t need help getting back into the workforce—even if they took a significant amount of time off work. In contrast, a parent who has spent the entirety of the marriage helping his or her spouse build a career (at their own expense), would have a much greater need for spousal support upon divorce.

Duration of Spousal Support

In California, a good rule of thumb is to assume spousal support will last half the duration of a marriage under ten years. So, if you were married eight years, you’ll probably be required to pay support for about four. If the marriage continued for six, then three years is a good estimate.

For couples that endured longer than ten years, things become more unpredictable, and in these cases, it’s common for judges to order spousal support for an indeterminable amount of time. When this happens, the paying spouse would have the burden of proof to eventually show that funds were no longer needed. In general, however, “lifetime” support is quite rare, and payments usually only last as long as it takes for the homemaker to become self-sufficient.

Collecting Spousal Support: Easement of Assignment

Not only can spousal support be garnished from wages, but it’s actually standard procedure to do so. This is because in California, every order of spousal support comes pre-packaged with an Easement of Assignment, eliminating much of the collection hassle.

An Easement of Assignment—a fancy way of saying “wage garnishment”—is a legal document requiring a person’s employer to pay a certain amount of money to someone else, before giving them their take home pay. To activate your Easement of Assignment, simply fill out the necessary forms (including attachments), and turn them into the county clerk for signatures. Once the documents are returned, you can then serve them to your ex’s employer, who will then have ten days to begin taking out the necessary funds.

This process might sound invasive, however, it’s actually quite efficient. By doing so, California courts not only decrease payor default, but also ensure that funds are available to the supported spouse regularly and on time—a win-win for both sides.

Easement of Assignment Not Required

While convenient, California does not require spousal support to be garnished from wages. So long as neither party is on public assistance, payors can request that their Easement of Assignment be put on hold, until (if ever) it’s needed. This hold can always be reversed if necessary, so payors shouldn’t view this as a way to negate spousal support obligations.

Help from Local Child Support Agency (LCSA)

Unfortunately, collecting spousal support isn’t always as easy as filing an Easement of Assignment—especially if your ex doesn’t have full-time employment. While it’s always possible to recover funds on your own, the time, expense, and headache might not be worth the effort, especially when someone else can do it for you.

In California, the Local Child Support Agency (LCSA) can help you recoup unpaid or delinquent support payments. Their services are available for both spousal support and child support at no charge to you, and aside from being free, the benefit of using the LCSA, is that they have many resource at their disposal that aren’t available to you.

To secure payments, some of the things the LCSA may do, are:

Report missed payments to credit reporting agencies;
Deny your ex a passport renewal;
Place a lien against their property;
Suspend their state-issued driver’s license;
Intercept tax refunds to deduct payment;
Use the Financial Institution Data Match to find assets, and retrieve money from what’s available;
Subtract funds from disability and/or unemployment benefits; and, even,
Claim lottery winnings—if your ex happens to be lucky enough to get the winning ticket.

Since their services do not cost you anything, it makes a lot of sense to use the LCSA, rather than trying to get your ex to cough up the cash on your own.

Penalties for Failure to Pay Spousal Support

The consequences for not paying spousal support go beyond garnished wages. As you can see, not making these payments could affect credit scores, mess with bank accounts, keep you from traveling, detrimentally affect tax filings, and—in some cases—could even hold you in contempt of court.

Being held in contempt is a criminal offence. Under these charges, if someone can prove that you withheld spousal support funds intentionally, you could be slapped with jail time.

If You Can’t Pay, Notify the Court Immediately

Of course, life is unpredictable, and things can happen that make it difficult or impossible to make payments. The court understands these situations arise, and when they do, it’s important to notify them as soon as possible. Sometimes couples can come together and figure out an alternative payment schedule on their own. If not, however, you may still be able to file a motion to modify with the court.

One thing is clear, though, with so many negative consequences for withholding spousal support, there’s never a good reason to ignore payments.

California Spousal Support Attorneys

If you are struggling to collect spousal support from your ex, or, if you don’t agree with an order of spousal support, we can help. Call us at (209) 989-4425, or get in touch online to schedule your consultation, and together, we can explore options that will address your individual needs, without detrimentally effecting your own interests.

Divorce

How Infidelity Affects Alimony in California

July 27, 2020
by Anna Maples

Most people are probably already familiar with the term, but to kick things off right, let’s start with the legal definition of adultery, which is: any consenting sexual relationship where at least one of the parties is married to someone else.

Historically, punishments for this behavior were swift and harsh, ranging anywhere from torture to mutilation, and in some cases, even death. Not to mention a hefty dose of social isolation and religious shunning for many. The brunt of all which was—unsurprisingly—borne by women. While men occasionally faced fines or punishments, as a whole, their consequences were relatively minor.

Luckily, over the past century or so, most countries have done away with such extreme measures. However, while relationships and sexuality are seen much differently than they were in the past, it may be surprising to hear that adultery is still a criminal offense in some states, including Idaho, Mississippi, Virginia, Oklahoma, North Carolina, and others. And while these laws aren’t often enforced, it still makes adultery a pretty valid concern for those individuals dealing with divorce.

Here’s what you need to know about how the law handles adultery in California.

What is the Law on Adultery in California?

Adultery is not against the law in California, neither is it technically “illegal,” since divorce is a civil proceeding, not a criminal one.

As to how it affects divorce, California is a no-fault state. This means, that a couple doesn’t have to do anything more than cite “irreconcilable differences” for a dissolution. Being a no-fault state also means that courts can’t consider fault when making major decisions about property and child custody.

The only way adultery might affect the financial outcome of a divorce proceeding, is if the injured party can prove that the cheating spouse blew through shared income or marital property on the affair. If they can, a judge would probably order that money to be reimbursed to the family pot before divvying it out. Proving this can sometimes be tricky, though, especially if the cheating spouse didn’t leave a paper trail.

Can I Sue My Spouse for Cheating in California?

As satisfying as that would be, the short answer is: no.

In days gone by, there used to be ways for an injured party to bring a suit against the homewrecker in the adulterous duo. These were usually filed by the husband against the wife’s lover for compensation of lost affection. While there are some exceptions, most states have done away with these “alienation of affection” or “heart balm” suits, and the closest you can get to suing a lover in California is if the situation was so bad, that there was actual harm. (Say, if Handsome Homewrecker was stalking or threatening you.) But even then, those wouldn’t so much be “adulterous homewrecker” charges, as they would be a case of simple battery and assault.

Who Pays for Divorce if There’s Adultery?

For this question, we again refer back to California’s status as a no-fault divorce state. Remember, in these jurisdictions, cheating isn’t grounds for divorce, and neither can it be used to determine the split of assets. So, as you might guess—regardless of who was unfaithful—both parties are required to fit the bill for their own attorney’s fees.

Can a Cheating Spouse Get Alimony?

Absolutely.

Alimony, or “spousal support,” is basically financial aid given by a “supporting spouse” to a “dependent spouse” after a divorce, upholding the idea that financial reasons shouldn’t be the reason people stay in an unhappy marriage. Ergo, cheating doesn’t really come into play here. This situation most often arises with women, who frequently put careers and personal pursuits on hold in order to support a family, which of course, then hinders her marketability for jobs post-divorce.

The only way adultery might come into play in regards to alimony, is if the cheating spouse is living with his or her lover, or getting other financial help from the new relationship. In that situation, the savvy attorney might argue there’s less need for financial support, thus possibly reducing the price tag of alimony.

How Long Do You Have to Pay Spousal Support in California?

Since spousal support is based entirely on a couple’s individual situation, it’s difficult to say exactly how long alimony payouts will last. When deciding amount and length, courts will look at a few factors, including:

Duration of the marriage;
Standard of living during the marriage;
The supporting spouse’s ability to pay;
Age and health of the respective parties; and
What marketable education and job skills the dependent spouse has.

Obviously, these factors rely heavily on personal circumstances, and as a result, the verdicts will vary. While they are being determined, a judge will often order temporary support payments, which are made to the dependent spouse while the case is pending.

Does Infidelity Affect Child Custody in California?

As a no-fault divorce state, California does not consider adultery when determining the best interest of a child. This is because courts recognize the importance of children having healthy relationships with both parents, and want to facilitate that whenever possible. Hence, the only way an affair might hurt a custody arrangement is if the cheating spouse’s actions are somehow detrimental to their parenting. (Say, if they were neglectful, or the new relationship was causing harm to the child in some way.) Otherwise—however unsavory—adultery doesn’t mean you’re a bad parent.

In short, while being an at-fault state does make some things simpler, divorce is almost always messy and complicated. If you have more questions about how infidelity affects alimony in California, or want to talk about your specific situation, please reach out to us at (209) 989-4425, or get in touch online to schedule a consultation. Divorce is emotional, especially when infidelity is involved, but together, we can help give you the best shot at rebuilding a bright future.

Divorce

7 Divorce Tips for Moms

May 6, 2020August 10, 2020
by Angie

If you’re a mother who’s considering divorce, you’re facing some unique challenges. Check out these divorce tips for moms to find out what lies ahead – and prepare yourself for a successful outcome.

7 Divorce Tips for Moms

Check out these seven divorce tips for moms, and then read on to get answers to some of our most commonly asked questions.

#1. If you need spousal support, ask for it.

Many working and stay-at-home moms are entitled to spousal support (more on that later), so if you need it, don’t be afraid to ask for it.

#2. Try to work with your spouse to reach agreements about your children.

When you and your spouse can work together – even if your children can’t see that you’re doing it – you’re setting a good example. You’re also more likely to be reasonably satisfied with the outcome when you both have a hand in creating it.

Related: 13 co-parenting rules to live by

#3. Learn about co-parenting, and encourage your ex to learn about it, too.

Co-parenting is good for your kids; it’s the act of working with your spouse to continue to parent your children. (But if you can’t co-parent because your ex is too uncooperative, don’t stress it. Things will work out just fine – trust us.)

#4. Get everything in writing.

When you communicate with your ex, try to keep it in writing – especially if you two don’t get along very well. When you have a series of emails, you have a paper trail you can fall back on if your ex says one thing and does another.

#5. Don’t talk about your divorce (or your ex) in front of your kids.

Your kids know you’re getting divorced, and it’s definitely fine to answer their questions in age-appropriate ways. However, don’t call your mom, your best friend or your therapist in front of them – they’re not emotionally equipped to handle it.

#6. Don’t try to mediate between your kids and their other parent when there’s a disagreement.

If your children and your ex have a disagreement or dispute, don’t try to be the middleman. It’s between them, and you should support your children without trying to mediate.

#7. Expect your kids to feel confused, guilty, sad or abandoned.

Kids deal with divorce differently based on several factors, including their ages. It’s normal for children to feel confused, guilty, sad or abandoned – and it’s up to you to reassure them that you love them. Another thing to consider: Many children benefit from talking to a divorce therapist.

Divorce Tips for Moms: FAQ

We get a lot of questions specifically from moms, so check out these FAQ – and if you don’t see an answer to your question here, call us at 209-395-1605 to schedule a consultation with a Stockton divorce lawyer.

Related: Child custody in California

How Do Stay-at-Home Moms Get Divorced?

If you’re a stay-at-home mom who wants a divorce, you need to know that it is entirely possible for you to leave your spouse and get a fresh start. You’ll have to:

Get financial records, such as bank statements, asset statements, tax returns and other documents
Think about how you’ll divide your assets (California is a community property state)
Talk to an attorney about spousal support and having the court compel your ex to pay your legal fees
Learn about child support in California
Make a concrete plan before you take any major steps

How Do You Get Divorced When You Have No Money?

For many moms who have no money, divorce seems out of reach – but there are still a couple of options. First, you can file for divorce on your own, without an attorney. You may also be able to get the judge to agree that your spouse should pay your legal fees, which can happen when one spouse was the primary earner and the other doesn’t have the financial resources to pay an attorney.

What Are My Rights as a Mother Going Through Divorce?

In California, mothers and fathers have equal rights during a divorce. With that said, you have the right to:

Ask for physical custody of your children
Ask for legal custody of your children
Receive child support if you are the custodial parent
Ask for spousal support if you need it

What Does a Wife Get in a Divorce?

California is a community property state, which means everything that you and your spouse acquire during your marriage belongs equally to both of you. Some property is separate, though – if you or your ex brought it into the marriage, it’s generally yours to keep. Still other property is a mix of separate and community. Here’s an example: Let’s say you bought a house a few years before you married. You continued paying on the house even after you got married. Because you continued to pay for it once you got married, it’s part separate, part community. Your lawyer can help you figure out how to divide the house (or its proceeds, should you sell it).

Can a Stay-at-Home Mom Get Alimony?

Many stay-at-home mothers are entitled to alimony in a divorce. Usually, a judge will look at several factors when determining whether to award spousal support – including whether the supported spouse (in this case, the stay-at-home mom) can support herself. Usually, courts award alimony for a set period of time – typically how long it should take for the supported spouse to become self-supporting.

Can I Be a Stay-at-Home Mom After Divorce?

Realistically, it would be difficult for a person to be a stay-at-home mom after divorce. When the courts award spousal maintenance, it’s with the intention of the supported spouse becoming self-sufficient within a reasonable period of time. That means you would need to take the time you’re receiving alimony and work toward earning a degree or learning new job skills so that you can support yourself. However, if you can get your ex-spouse to agree to pay you a significant amount of spousal support with an agreement that you’ll remain a stay-at-home mom, it may be possible.

Do You Need to Talk to a Lawyer to Get More Divorce Tips for Moms?

If you’re a mom considering divorce, or if your spouse has already filed, we may be able to help you. Call us at 209-395-1605 to schedule your consultation with an experienced Stockton family law attorney today.

Spousal Support

Spousal Support in California: Long-Term Marriages

January 12, 2020March 6, 2020
by Angie

Spousal support in California after a long-term marriage is different from spousal support after a short-term marriage. The courts have a lot of leeway in determining the amount and duration of support, but California Family Code outlines specific guidelines when a marriage is long-term.

So how does spousal support in California work after a long-term marriage?

Spousal Support in California: Long-Term Marriages

California Family Code, Section 4336 defines a long-term marriage as one lasting 10 years or more. However, the law also says that the court can consider periods of separation during the marriage – so if you’ve been married for 12 years but separated for 4 years, the court may decide that your marriage wasn’t actually “long-term.”

Conversely, nothing in the law prevents the court from determining that a marriage lasting less than 10 years is a long-term marriage, either. That means even if you were only married for 7 years, the court could consider it a “marriage of long duration.” And while there’s no way to predict how a judge will rule, your Stockton divorce attorney can talk to you about the length of your marriage and what kind of spousal support you’re likely to pay or receive.

With all that said, here’s why it matters: The length of your marriage can affect how long you’ll receive spousal support – and even how much you pay or receive. When a judge considers the length of a marriage in making support decisions, he or she is really determining how long the court will have jurisdiction over support.

In short-term marriages, the courts can order spousal support for a set period of time. However, once support ends, the court no longer has jurisdiction over it. That means the spouse who was receiving support can’t come back to the court and ask a judge to re-order support if he or she still needs it.

Conversely, in long-term marriages, the courts can order spousal support for a set period of time. However, once the paying party’s obligation ends, the receiving spouse can come back to the court and ask the judge to create a new support order.

Here are a couple of examples.

Spousal Support in California: Example #1

Matt and Jenn were married for 9 years. The court determines that theirs was not a long-term marriage and orders Matt to pay Jenn spousal support for 5 years. The spousal support order ends the courts jurisdiction after Matt’s support obligation ends. Jenn can ask the court to change the amount she receives in spousal support during that initial 5 years, but after that, the court can’t do anything for her – even if she needs it.

Spousal Support in California: Example #2

Krysten and Amy were married for 14 years. Because the marriage lasted more than 10 years and the two were not separated at all during that time, the court does consider it a long-term marriage. The spousal support order requires Krysten to pay Amy spousal support for 7 years. After 7 years, Amy can come back and ask the judge to issue another support order – and the court retains jurisdiction over the case until Amy remarries or dies.

The 10-Year Myth in Spousal Support

A lot of people ask about the 10-Year rule in spousal support, but there’s no such thing – it’s a myth. The court determines whether a marriage is long-term, and sometimes judges rule that marriages that lasted fewer than 10 years are still long-term.

Will My Ex Get Spousal Support for Life?

In some long-term marriages – and even after some short-term marriages – one spouse is entitled to receive spousal support for life. Sometimes this happens when a couple is married for a long time and one party hasn’t worked, or when one party is disabled and cannot care for him- or herself. Again, there’s no way to predict how a judge will rule, so if you’re not sure, it’s best to talk to your lawyer about your situation.

Do You Need to Talk to a Lawyer About Spousal Support in California After a Long-Term Marriage?

If you need to talk to an attorney about spousal support after a long-term marriage in California, we may be able to help you. Call us at (209) 546-6246 to set up a consultation to talk about your case and get answers to all your questions, including those about child custody and child support, property division and more.

Divorce

Do Prenups Work?

December 12, 2019August 12, 2020
by Angie

Do prenups work? For most people, they do – but there are certain things that can make a prenuptial agreement unenforceable when you go to court. The language in a prenup has to be crystal-clear; otherwise, either party can argue it in court.

Here are the basics about how – and why – prenups work, as well as what makes them invalid.

Do Prenups Work?

Prenuptial agreements work when they’re executed properly. In order to be executed properly, both spouses must have:

Received complete information from the other spouse regarding his or her property and finances before signing the agreement
Had at least a week between receiving the agreement for the first time and signing it, so that there was enough time to have an attorney review the agreement
Been represented by a different attorney when signing, unless he or she received full information in writing about the terms and effect of the agreement (to include rights or obligations signing the agreement would cancel out) and he or she signed a separate document that acknowledged his or her receipt of that information, as well as identifying the person who gave that information and waiving the right to an attorney

Further, prenups have to be fair to be enforceable. If the judge in your case sees that the prenup is extremely unfair to one spouse – such as leaving him or her with nothing but the clothing they owned at the time of the marriage – the judge isn’t likely to uphold it in your case.

Prenuptial agreements can only address certain things, too. Some things are off-limits, such as anything pertaining to the couple’s future children.

Related: Prenups in California

5 Things to Know About Prenuptial Agreements

Fairness matters. The court will look at your prenup to make sure it’s not going to leave one spouse destitute while the other takes it all.
Full disclosure is required. Both parties are legally obligated to disclose the truth about everything in a prenuptial agreement.
Premarital assets are usually off-limits to both parties. Most often, prenups separate premarital assets and designate them to remain with their original owners. While that’s usually the case anyway – separate property remains separate under California law – there are always exceptions.
You can set terms for alimony. Many prenups set terms for spousal support, often requiring the lower-earning spouse to waive his or her rights entirely.
You can’t include anything having to do with your (future) children. Prenuptial agreements can’t include things like child support amounts or child custody arrangements. Those things are always based on what’s best for the child at the time – and the courts won’t enforce prenups that demand custody or limit the amount of child support that one spouse will have to pay.

Related: Community property basics

What Makes a Prenuptial Agreement Invalid?

Do prenups work all the time? No. Some things can make a prenuptial agreement invalid, such as when they:

Are not in writing
Are not properly executed
Were signed under pressure from one spouse
Weren’t read fully before signing
Were rushed to the point that the signing spouse didn’t have adequate time for consideration
Contain invalid provisions
Contain false information
Contain incomplete information
Were signed without consulting with an attorney, unless the signer waived his or her right to counsel
Are unconscionably unfair

Can You Fight Your Prenup?

You can argue a prenuptial agreement in court. It’s up to the judge whether it’s enforceable – and in some cases, some parts of a prenup are enforceable while others are not. For example, the judge may rule that waiving spousal maintenance is fair, but that requiring one spouse to move out of the marital home and give up his or her vehicle may be unenforceable.

Do Prenups Work? Sometimes. Here’s How to Get Legal Help.

If you need to talk to an attorney about a prenuptial agreement, we may be able to help you. In fact, we can help you with any aspect of your divorce. Call us today at (209) 546-6870 or get in touch with a Stockton divorce attorney online to schedule a consultation.

Spousal Support

What is Considered Income for Spousal Support?

December 7, 2019August 12, 2020
by Angie

If you’re like many people going through a divorce in California, you need to know what is considered income for spousal support. That’s true whether you’re likely to have to pay spousal support (commonly called alimony) or whether you’re likely to receive it.

Usually, the court awards alimony to the lower-earning spouse. It’s a way to level the playing field so that the lower earner has time to get on his or her feet and become completely self-sufficient.

When a judge awards spousal support, he or she must consider the paying spouse’s income.

But what is considered income for spousal support? Here’s what you need to know.

What is Considered Income for Spousal Support?

Judges will only award spousal support when one spouse makes a significant amount more than the other does. The alimony must be fair and reasonable to the lower-earning spouse, but it has to be something that the higher-earning spouse can actually afford. That’s why the courts consider income as a major factor.

Income for spousal support includes all sources of money that a person receives, whether it’s through a paycheck, through stock dividends or through another source. Generally, everything that you’d pay income tax on when it’s time to make a payment to the IRS counts as your income.

What About Imputed Income?

If the person who is supposed to pay spousal support is working a job that pays less than what he or she could earn – especially if the person is doing it purposefully to avoid paying spousal support or child support – the courts can figure out an amount based on a higher figure. That’s known as imputing income for support, and it means that the court will attribute income to a person who hasn’t actually earned it.

Here’s an example: Your ex takes a $20 per hour job as a mall security guard, even though he or she is an established draftsman or engineer who was previously employed in a large firm (and made more than $20 per hour). The court may use the salary from your ex’s previous job to determine how much support he or she should pay. That’s imputed income that your ex could reasonably earn, as shown by his or her prior employment history.

Here’s another example: Your ex has been earning $90,000 per year in a long-term job. However, that job requires a lot of travel. Your ex quits and takes another job making just half of his or her previous salary – and then says that spousal support is unaffordable. The judge in your case will want to know why your ex quit the stable, long-term job, and you’ll have a chance to explain that it was completely voluntary. In a case like that, the judge could impute income, resulting in a spousal support payment comparable to what you’d receive if your ex still had the $900-per-year job.

A Word on Spousal Support AS Income

When someone receives spousal support, he or she must count it as income when filing federal and state tax returns. According to the IRS, alimony needs to be included in a person’s income if the two parties involved meet the following conditions:

The spouses don’t file a joint return with each other
The payment is in cash (including checks or money orders)
The payment is to or for a spouse or a former spouse made under a divorce or separation instrument
The divorce or separation instrument doesn’t designate the payment as not alimony
The spouses aren’t members of the same household when the payment is made (this requirement applies only if the spouses are legally separated under a decree of divorce or of separate maintenance)
There’s no liability to make the payment (in cash or property) after the death of the recipient spouse
The payment isn’t treated as child support or a property settlement

As a side note, if you pay spousal support, the IRS says “Alimony is deductible by the payer spouse.”

Do You Need Legal Advice on What is Considered Income for Spousal Support?

If you need legal advice, such as what is considered income for spousal support, or if you want to find out whether you’ll have to pay – or be entitled to – spousal support, we can help. Call us at (209) 989-4425 or get in touch with us online to schedule your consultation. We’ll help you with every aspect of your divorce, from child custody and child support to property division.

Divorce

If I Get Remarried, Do I Still Have to…

December 1, 2019August 12, 2020
by Angie

“If I get remarried, do I still have to pay alimony?”

This is a pretty common question – and it’s one there’s a definite answer to.

Yes, you still have to pay alimony to your former spouse if you get remarried. Here’s a closer look at what alimony is, why you pay it, and when you can stop paying it.

If I Get Remarried, Do I Still Have to Pay Alimony?

When you remarry someone after a previous marriage, you’re still obligated to pay alimony to your former spouse. (Only if you have a court order, though – otherwise, you aren’t legally obligated to pay spousal support.)

However, if your former spouse remarries – the one to whom you’re paying alimony – your obligation most likely ends.

What is Alimony?

Alimony, which is technically called spousal support, is money one party to a marriage must pay the other party. Spousal support can change hands for a short period of time, or the paying spouse may have to pay the receiving spouse until one passes away. When a court orders spousal support, these are the factors the judge must consider:

Each party’s earning capacity
How much the supported party contributed to the supporting party’s education, career or licensure
The supporting party’s ability to pay
Each spouse’s needs based on the standard of living established during the marriage
Each spouse’s assets and obligations
The duration of the marriage
Each spouse’s age and health
Evidence of a history of domestic violence or criminal convictions
Tax repercussions for each spouse
The balance of hardships to each party
The ultimate goal that the supported party will be self-supporting within a reasonable amount of time
Any other factors the court feels are just and equitable

Spousal Support: Why One Party May Have to Pay

Spousal support is typically only meant to help the lower-earning spouse to get on his or her feet. A judge may order it for a few years or longer, depending on the amount of time it should take for the other party to become self-sufficient.

In cases where one spouse stayed home to care for the children and the home while the other was the only income-earner, the court may award the stay-at-home spouse alimony so that he or she can gain the skills necessary to get a job and be competitive in the labor market. Likewise, in cases where one spouse stayed home to “hold down the fort” while the other went to school or furthered his or her career, the judge may order spousal support.

How Long Do You Have to Pay Alimony?

You have to pay alimony for as long as the judge orders it. Most spousal support orders come with conditions that will terminate spousal support. For example, if the receiving spouse remarries, he or she won’t be entitled to spousal support payments any longer; there’s a new spouse in the picture who can contribute to that person’s income.

“But if I get remarried, do I still have to pay alimony?” If that’s what you’re wondering, the answer is yes. Your remarriage doesn’t have any bearing on your former spouse’s needs. You must still pay alimony until your court order terminates it (such as when the supported spouse gets remarried or dies, or when the court ordered it for a specific period of time and that time expires).

You can ask the judge in your case to modify your spousal support order, though, even if none of the conditions that would ordinarily stop alimony payments have been met. You must show the court that circumstances have changed significantly. For example, if your income changes drastically and you can no longer afford to pay, you can petition the court to change your order. If the supported spouse moves in with someone, or if he or she starts making a lot more money, you can also ask the court to change your order. Your best bet is to consult with an attorney if you want to change the amount of spousal support you must pay.

Do You Need to Talk to a Lawyer About Spousal Support?

While you can call us to ask, “If I get remarried, do I still have to pay alimony?” and we’ll be happy to hear from you, please know that the answer is yes. You still have to pay alimony if you get remarried. Otherwise, you can talk to us about changing your spousal support order, or get legal advice on whether you’ll have to pay alimony as part of your divorce – just call us at (209) 989-4425 or get in touch with us online to schedule your consultation. We’ll help you with every aspect of your divorce, from child custody and child support to property division.

Divorce

Spousal Support Payments Are No-Longer Tax Deductible if You…

December 24, 2018August 14, 2020
by tobyrosen

Spousal Support Payments Are No-Longer Tax Deductible if You Divorce After January 1, 2019

Divorce can be complicated, particularly where there are children involved. However, even cases involving significant amounts of spousal support are highly contentious. Prior to the 2019 change, The IRS provided a useful negotiation tool, making spousal support tax-deductible to the paying spouse; this will all end on January 1, 2019. This article will briefly discuss how support payments and taxes interacted before the January 1, 2019 laws go into effect, and how support payments and taxes will interact after the January 1, 2019 laws go into effect.

If you received a divorce in California, there are four general areas that the tax laws will impact that divorce: (1) dependency exemptions; (2) division of property; (3) tax filing status; and (4) support – this article will specifically discuss the tax implications for support orders, which are issued in conjunction with a dissolution proceeding.

There are 3 basic forms of support in California: (1) family support; (2) child support; and (3) spousal support (commonly referred to as “alimony”). Each form of support receives different treatment under the tax code, which makes it essential that people seeking a divorce contact a competent family law attorney, so they can assist you in determining whether support payments are tax-deductible, or whether that support is considered income for tax purposes.

Family Support Agreements and Their Tax Implications Prior to the Implementation of the January 1, 2019 Tax Laws

In California, provided both parties agree in writing, parties to a dissolution can opt to have a support order for both family and spousal support entered, this is referred to as “family support.” This combination allows the parties to treat the entire “family order” to be treated as though it were spousal support or child support. The practical implication of this is that a “family support” order can be deemed entirely tax-deductible (for the party paying) and entirely taxable (for the party receiving the support). Alternatively, the entire “family order” can be non-taxable like child support. Since a written agreement is a pre-requisite to a “family order”, that written agreement needs to expressly set out the nature of the “family support” if you want to effectuate your desired goals as it relates to taxes.

It is important to note that since “family support” requires an agreement, that agreement can be negated unilaterally by either party. If this happens, then the Court will enter a child support order in conjunction with a spousal support order. The pre-2019 tax implications for these orders is discussed below.

Child Support and Its Tax Implications Prior to the Implementation of the January 1, 2019 Tax Laws

Pursuant to IRS Code §71, subsection (c)(1), states: “Subsection (a) [the subsection establishing that support payments are taxable] shall not apply to that part of any payment which the terms of the divorce or separation instrument fix (in terms of an amount of money or a part of the payment) as a sum which is payable for the support of children of the payor spouse.”

As a general rule, child support payments are not imputed to the recipient (commonly referred to as the “Payee”) of that support’s income, which means that child support payments do not constitute taxable income to the payee; similarly, child support payments are not tax-deductible to the person making the payment (commonly referred to as the “Payor”).

A pre-requisite to obtaining the non-taxable status on these payments is that the Court specifically designate the amount of the payments as “child support.” In the event that the Court is silent on the nature of the payment, it is possible that those payments will not be considered “child support” for tax purposes; a prime example is the federally claimable “Child and Dependent Care Credit. Spousal support is where most battles regarding taxable amounts take place, though this will all change January 1, 2019.

Spousal Support (“Alimony) and Its Tax Implications Prior to the Implementation of the January 1, 2019 Tax Laws

IRS Tax Code §71, subsection (b)(1), states: “The term ‘alimony or separate maintenance payment’ [which are taxable/deductible] means any payment in cash if:

(A) “such payment is received by (or on behalf of) a spouse under a divorce or separation instrument”
- IRS Tax Code §71, subsection (b)(2), clarifies: “The term “divorce or separation instrument” means:
- (A) “a decree of divorce or separate maintenance or a written instrument incident to such a decree”
- (B) “a written separation agreement” or
- (C) “a decree (not described in subparagraph (A) requiring a spouse to make payments for the support or maintenance of the other spouse.”
(B) “the divorce or separation instrument does not designate such payment as a payment which is not includible in gross income under this section and not allowable as a deduction under section 215”
(C) “in the case of an individual legally separated from his spouse under a decree of divorce or of separate maintenance, the payee spouse and the payor spouse are not members of the same household at the time such payment is made” and
(D) “there is no liability to make any such payment for any period after the death of the payee spouse and there is no liability to make any payment (in cash or property) as a substitute for such payments after the death of the payee spouse.”

In plain English, “spousal support” and “alimony” mean the same thing under IRS Tax Code §71. This means that the spousal support recipient (“Payee”) treats those support payments as taxable income (since the support payments constitute income pursuant to the Tax Code. On the other side of the spectrum, the person making the spousal support payments (“Payor”) treats those payments are 100% tax deductible.

The fact that spousal support payments to the Payee are considered taxable income creates an additional consideration; similar to the tax requirements for independent contractors. Since the Payee will be taxed on the entire support payment at the end of the year (rather than having taxes taken out when the money is transferred), it is wise for the Payee to put about 20% of the total support payment into savings so that the Payee is not required to dig into their wallet during tax season.

On the opposite end of the spectrum, considering the additional expense of support payments, many Payors find themselves unable to maintain their previous quality of life vis-à-vis living expenses. Since spousal support payments are considered 100% tax-deductible, the prudent Payor may opt to reduce the number of withholding allowances with their employer to increase the amount of money they receive each paycheck (you should contact an expert on this matter to determine precisely how much you should modify your withholding allowances so that you net the same amount of money annually).

The preceding portion of this article refers to the state of tax law prior to the enactment of the new law on January 1, 2019. It is entirely possible that these new tax laws will be altered, or returned to their pre-2019 status, when the next administration takes office; it is important to understand the laws of both schemes if that occurs.

Having laid out precisely how the old tax laws interacted with various forms of support payment, the remainder of this article will discuss how the 2019 tax law will impact the various support payments.

Where Did The 2019 Changes to The Tax Code, In Relation to California Support Payments, Come From?

It is unlikely that this article is the first time you heard about the changes to the tax code that are going into effect on January 1, 2019. As noted above, spousal support is 100% tax-deductible to the Payor, while simultaneously constituting earned income to the Payee. This will all change on January 1, 2019.

President Trump’s hallmark achievement thus far is the Tac Cuts and Jobs Act (commonly referred to as “TCJA”). This law goes into effect January 1, 2019, but will have absolutely no impact on divorces, and support orders) entered into prior to December 31, 2018.

As a practical matter, the TCJA changes will make dissolution negotiations far more difficult; this is particularly true where the parties getting divorced have a high net-worth. The reason for this is probably straightforward, but we will use a few examples to bolster the point.

Pre-2019 Example: Harry and Wendy are seeking a divorce in July of 2018. Harry and Wendy have been bickering about who gets possession of their community property summer beach house, and neither of them are willing to share; it’s an all-or-nothing situation. Harry, who makes $500,000 per year, realizes that he has an additional bargaining chip – he offers to pay Wendy an additional $5,000 per month in spousal support, until she remarries, in exchange for possession of the summer beach house. Wendy, who earns roughly $50,000 per year, would love to have the additional income for quality-of-life purposes. Wendy accepts Harry’s offer. Come tax time, Harry pays property tax on the summer beach house, and only pays income tax on $440,000 of his income because the entire $60,000 is tax-deductible. Wendy does not pay taxes on the summer beach home but pays income taxes on $110,000 because the entire $60,000 in spousal support is considered income.

NOTE: This example only focuses on the additional spousal support Harry offered in exchange for the summer beach house, but the original support would be treated identically.

Post-2019 Example: The same example as above, however, the results are very different. Now, Harry pays taxes on the summer beach home as well as income tax on $500,000 notwithstanding the $60,000 he provided Wendy in spousal support. Meanwhile, Wendy only pays income tax on $50,000 while the remaining $60,000 is tax-free.

As you can see, the 2019 changes removed a very useful bargaining chip in the negotiations.

Time will tell precisely how the 2019 changes will impact negotiations surrounding divorce, and how long these laws stay in effect, but the changes are going into effect nonetheless. If you or a loved one are considering a divorce, it is essential that you contact the attorneys at Maples Family Law today. We pride ourselves on our ability to adapt, as well as our ability to assist parties in reaching mutually agreeable terms as it relates to supporting. While the tax benefits have been removed from spousal support, that is not the only item in our toolbox. From all of us at Maples Family Law, we wish you a safe and happy new year.

Divorce

What is Temporary Spousal Support in California?

December 22, 2018January 17, 2019
by Angie

If you’re like most people, you’ve heard of spousal support – but what is temporary spousal support in California? Is it something you may have to pay or something that you’ll receive?

Here’s what you need to know about temporary spousal support. (Learn more about the differences between temporary and permanent spousal support here.)

What is Temporary Spousal Support in California?

Only a judge can order temporary spousal support in California. This type of order comes during your divorce or legal separation, and it’s only good during the time you’re going through your divorce. The technical term is pendente lite support. (Pendente lite is Latin for “during litigation.”)

Even permanent spousal support is usually temporary, though. Here’s where things get tricky: The courts typically refer to support orders that take effect after your divorce as permanent spousal support – even though it doesn’t last indefinitely. Permanent spousal support can last for a few months, several years, or until one of you passes away.

What is Temporary Spousal Support For?

Courts award temporary spousal support during divorce to help allocate family income. If one spouse earns and hoards all the money, that’s not fair – and the non-earning spouse is entitled to some of that family income while the divorce is pending. In many cases, the courts award enough money to allow the supported spouse to live in the same manner to which he or she was accustomed during the marriage. The money can go toward rent, bills and other expenses.

Temporary spousal support is not the same as child support. Receiving or paying spousal support doesn’t change whether you’ll receive or pay child support.

What Does the Judge Consider When Making an Order for Temporary Spousal Support in California?

Under California law, a judge can consider several factors when determining whether someone is eligible for temporary spousal support.

The law says, “During the pendency of any proceeding for dissolution of marriage or for legal separation of the parties… the court may order either spouse to pay any amount that is necessary for the support of the other spouse.”

Unlike permanent support, temporary spousal support usually doesn’t have anything to do with how long you were married.

Usually, temporary spousal support hinges on the asking spouse’s financial need and the paying spouse’s ability to pay. The judge in your case will look at many other factors when determining permanent spousal support, though, including:

Both spouses’ assets (including separate property)
Both spouses’ debts
Both spouses’ financial needs according to the marital standard of living they established
How extensively the supported spouse contributed to the paying spouse’s education, training, career or licensure in his or her field
How extensively the supported spouse’s earning capacity is lowered because he or she was unemployed during the marriage
How long it would take for the supported spouse to acquire the skills, education or training necessary to get a job, as well as how much it would cost
The age and health of each spouse
The length of the marriage
The supported spouse’s ability to work outside the home without derailing his or her dependent children’s lives
The supported spouse’s marketable skills, and whether he or she is likely to be able to get a job

Do You Need to Talk to an Attorney About Temporary Spousal Support?

If you’re thinking about filing for divorce, or if your spouse has already filed, you may want to talk to a Stockton family law attorney about temporary spousal support.

Call us at 209-910-9865 to set up a consultation to talk about your case and get answers to all your questions, including those about permanent alimony, child custody and child support, property division and more.