Misconceptions About California Spousal Support

Posted by: Gerald A. Maggio, Esq.

Divorce attorneys in Orange County; The Maggio Law FirmMany couples facing divorce in California have certain false notions ingrained in their minds related to spousal support (alimony) payments under the laws of California. Check out some of the most common misconceptions about spousal support payments below.

# 1: Receiving alimony payments is a compulsory right

You need to realize that it may not be mandatory for your former spouse to pay you alimony while your marriage gets dissolved or during proceedings of legal separation. In fact, the reverse may be true. The final discretion lies with the courts on whether to direct for spousal support or deny it altogether. There should be a cautious consideration and evaluation of the legal factors to assess whether the earning capability of both the involved parties are sufficient to continue with the same standard of living as they had while their marriage was intact. It should be done before a court denies or orders spousal support. Some of the factors that are considered by the court for making a decision are as follows:

  1. How much contribution was made by the supported party for attaining an education, a career position, a license by the said supporting party or training.
  2. The degree to which the future or present earning capacity of the supported party is impaired due to the unemployment periods, which were incurred while the marriage was on so that the supported party could spend time to discharge domestic responsibilities.
  3. The supported party’s marketable skills and the job potential for those skills.

Other factors that the court must consider are as stated in California Family Code section 4320.

#2: A computer program can determine the “permanent” (long-term) spousal support amount to be made

You should know that a computer support program used to determine temporary spousal support and child support such as DissoMaster or Xspouse cannot determine how much alimony payment you should receive long-term, i.e. beyond your divorce.  After all, Family Code section 4320 must be considered by the court to ascertain the amount of spousal support. The misconception originates from the knowledge that computer programs, which enable a judge to calculate child support and temporary spousal support has a function for determining, long-term spousal support too.

#3: Spousal supported is assured for life after ten years

Just because you are married for 10 years or more does not guarantee that the other party has to pay you spousal support indefinitely or for life.  The spouse receiving support has to make efforts to become self-supporting.  A marriage of more than 10 years in California simply means that the court has continuing jurisdiction over the issue of spousal support but the circumstances of each case during the marriage and afterwards play a big role in determining how long spousal support payments may be.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

More Women Are Paying Alimony Today

Posted by: Gerald A. Maggio, Esq.

orange county spousal support; The Maggio Law FirmThings have changed drastically in the workplace with an increasing number of women being seen in high-level positions in the corporate sector today. In fact, according to statistics, women are found to be the top earning members in about one-third of the marriages.

As a massive number of marriages are found to end in a divorce today, this change has led to another key transformation. There is an emerging, growing and new trend of many women paying for their child support or alimony to their former husbands. The meaning of equal rights is that an ex-husband may demand alimony if his wife is the family’s major breadwinner.

About 56 percent of the divorce attorneys in the US have witnessed a surge in the number of moms paying for child support, especially in the past 3 years. 47 percent of the divorce lawyers observed an increase in the number of females paying alimony to their former spouses. The American Academy of Matrimonial Lawyers came up with these interesting statistics,

If one spouse earns significantly more than the other spouse, alimony serves the purpose of equalizing both the spouses’ lifestyle when their marriage gets dissolved. The original aim of alimony was to safeguard the interests of that spouse who was not the main bread winner of the family, typically the wife.  Today, alimony is much more gender-neutral and it’s the disparity of income between the spouses that determines spousal support.

What is the significance of this for those women with rising careers?

Though planning for a divorce goes against the principle of a happy marriage, you need to understand the effect of your salary increase. It is applicable for different kinds of situations ranging from taxes to retirement. Hence proper financial planning should start while taking into account co-mingling assets.

When is a prenuptial agreement a handy tool?

In a marriage where both the parties and one of them have acquired a great desk of assets, it is a good idea to have a prenuptial agreement so that there is no unpleasantness between the couple in the future. When a couple consults a reputable divorce attorney and a financial advisor prior to exchanging their vows, it helps in understanding what should be included in their prenuptial agreement.

When you create a financial inventory and a balance sheet up front, there could be constructive discussions between both the parties so that both the parties are aware what liabilities and assets are there in the beginning. Such acknowledge may come handy for both the parties that can be used for setting their future shared financial goals.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Seeking Spousal Support In Divorce Cases

Posted by: Gerald A. Maggio, Esq.

orange county spousal support; The Maggio Law FirmWhen there is a legal separation or divorce of any couple, it may be ordered by the court to one domestic partner or spouse to pay other a specific quantity of money every month. This money is termed as “spousal support” and “partner support” for the married couples and domestic partnerships respectively. It is occasionally referred to as “alimony”.

Do understand that partner and spousal support issues can be extremely difficult.  The firm will assist you to comprehend partner or spousal support and the duration this support will last and the way it will affect the taxes. You will also be helped to calculate partner or spousal support. It will also prepare the necessary court forms.

A court case is needed to establish partner or spousal support. The judge can be requested by the domestic partner or spouse to make a partner or spousal support as a component of one of these kinds of cases like annulment, divorce or a legal separation. It also includes a restraining order involving domestic violence.  It is possible to request a partner or spousal support while the case continues. This is termed a “temporary spousal support order.” The support can also be ordered once there is a finalization of legal separation, as part of the final separation judgment or final divorce. When this is done, it is termed “permanent partner or spousal support.”

Calculating support 

For such temporary partner or spousal support, the judges in local courts usually employ a formula to calculate an amount. The courts in the different counties could use a few other factors to calculate temporary support. A formula will not be used by the judge to calculate how much partner or spousal support is needed to complete the case.

To determine long-term support in a divorce judgment, the judge should consider factors included in the California Family Code section 4320. The list of such factors include the length of domestic partnership or marriage and what each person making up the marriage requires based on the existing living standards during the marriage. The judge will also take into account what each partner can pay or pats to maintain the living standards he or she had during the partnership or marriage.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

What To Know About Spousal Support Under California Law

Posted by: Gerald A. Maggio, Esq.

orange county spousal support; The Maggio Law FirmCalifornia state laws mandate that the question of permanent spousal support or alimony must be decided after careful consideration of numerous factors and the state laws give the courts tremendous discretion in setting or deciding the terms of alimony and whether a party is liable to offer a full spousal support and also whether a party demanding it fulfills certain criteria.

Under the alimony laws, courts in California can order the higher earner to pay a sum of money for “maintenance of similar lifestyle to what the other party has been used to during marriage” for a determined period of time. It could be made in periodic installments or the question of support may also be settled in a single lump sum payment, as per the direction of the court. The court may also decide to ask the higher earner to pay a temporary support to the lower earner during the divorce proceedings which is called pendente lite.

How is the spousal support figure calculated?

A court can decide on the duration or amount of spousal support that the higher earner must pay to the lower earner in order to maintain the financial status quo. However, the ultimate aim is to make the recipient self-sufficient and as less dependent as possible. Parents of dependent children can obtain a rough estimate of the spousal support figure along with child support, which is calculated in a strict manner using a support calculator at the California Department of Child Support.

Some of the factors that a court in California would take into account to decide the degree to which a supported spouse has the earning capacity in order to maintain the marital living standard are as follows.

  • The marketable skills of the supported spouse and the demand for such skills.
  • The time or financial support the spouse may require to educate or train himself or herself to acquire those skills and become employable or to enhance one’s employability.
  • The extent to which the domestic duties and obligations during marriage has blunted the spouse’s ability to find suitable employment and thus his or her present or future earning capacities.

Other factors that may also play a dominant role are duration of the marriage, ability of a party who may be the sole custodian of a child, to engage in gainful employment without affecting the interests of the child in any way, the ability of the supporting spouse to pay support and maintain the marital standard of living for themselves and also for the other party, the age of the spouses, documented history of domestic violence, any tax consequences among others.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Can a Pre-Nup Agreement Protect You Regarding Spousal Support in CA?

Posted by: Gerald A. Maggio, Esq.

prenuptial agreements Orange CountyPrenuptial agreements are often signed by those getting bound by a marriage contract to protect certain rights and to give themselves exemptions from certain liabilities, in case the marriage doesn’t work out. It can be a pretty useful piece of agreement in case something unforeseen happens.

However, many can’t get past a mental block because of a common perception that it shows lack of love and trust between the partners. However, most experts suggest that these apprehensions are unfounded.

Prenuptial agreement under California laws

Prenuptial agreements in California are governed by its Uniform Premarital Agreement Act.  So, in California, a prenuptial agreement is basically known as a premarital agreement and it is a legally binding document that encompasses most aspects of en engaged couple’s life, post marriage.

It mainly deals with the financial aspects of a family, namely asset ownership but it can address spousal support.  Section 1610 of the Uniform Premarital Agreement defines the word “property” and defines its domain. The partners will be protected from each other’s debts in case of a divorce and the property and income settlements may be made as per the agreement clauses, as long as they fulfill the tenets of law.  With regard to issues of spousal support, as long as what is agreed to is not “unconscionable” (meaning substantially one-sided and unfair to one of the parties) at the time of entering into the agreement, such provisions can be enforceable, but it is highly advisable that you have a family law attorney draft such provisions with care.

Family Code Section 1612 defines the clauses that can be inserted into a pre-nup agreement under California laws and what can’t be. It mainly deals with financial decisions made during the tenure of a couple’s marriage.  It strictly prohibits making any contract about the rights of a child and their support since CA laws clearly state that their rights can’t be infringed upon by those of their parents, in case of a divorce.  It also provides an understanding of your liability towards spousal support or alimony and states that you may not be able to invoke this agreement if the party against whom this agreement is being used was coerced, not represented by an independent counsel or is being invoked with unconscionable objectives.

A party can waive his or her right to an independent legal counsel, prior to entering into a premarital agreement but it should be supported by a waiver written and notarized on a paper separate from the prenuptial agreement. There must also be a gap of seven days before signing the agreement and must have the legal capacity to sign it. If a party is not proficient in English, the agreement must be translated into his/her native language and is entitled to a full disclosure of terms, rights and obligations of the agreement.  The agreement can’t be invoked in case of violation of some public policies, as defined by the laws in California.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Timing Your Divorce Right: The Ten-Year Rule

Posted by: Gerald A. Maggio, Esq.

Top divorce attorneys in Orange County; The Maggio Law FirmUnder California law, the lower-earning spouse getting a divorce may be entitled to spousal support for a longer term if he/she has been married to their current partner for ten years or more.  If they have been married for less than ten years, spousal support is generally limited to a duration that is equal to half the length of the marriage.

Sounds a tad confusing? Let us illustrate it with the help of an example.

A and B are going through tough times and considering a divorce. A is the higher-earning spouse here, so it is A who is expected to pay alimony to B.

  • If they have been married for, say 7 years, A needs to pay alimony to B for 3.5 years (three years and six months).
  • If they have been married to each other for 11 years, A’s support obligation will not automatically terminate after half the length of the marriage.

In real life, Mel B (of Spice Girls fame) filed for divorce from producer Stephen Belafonte just short of their 10th anniversary. They would have completed ten years on June 6, 2017. She likely did this to avoid having to pay Belafonte ongoing spousal support with no specified termination date.

Actor Tom Cruise also mentioned in his divorce filing that his marriage to Nicole Kidman lasted only nine years and eleven months. It is believed that he did so for the same reason.

So if you are considering a divorce, ask yourself: How long have you been married to your present spouse?

If you expect to receive alimony, perhaps it would be a good idea to wait until your 10th wedding anniversary. That is assuming you haven’t celebrated it already. Who knows, you just might be able to put your differences aside and enjoy true marital bliss if you wait it out. You might not even want a divorce by then.

If you are the higher-earning spouse and will be expected to pay alimony, don’t wait until your 10th wedding anniversary if you are truly unhappy in your marriage and divorce seems inevitable. The sooner you get out, the better – you will end up paying lesser as support.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

What You Need to Know About Alimony Before Divorce

Posted by: Gerald A. Maggio, Esq.

orange county spousal support; The Maggio Law FirmWhen you are facing a divorce, you need to be prepared for the reality i.e. alimony payments to your spouse. There are some countries or states that refer to alimony also as “maintenance” or “spousal support”. This is an active component of the divorce system of many countries all over the world. In case your earning is significantly higher than that of your spouse and both of you are married for several years, there is a lot of possibilities that you have to pay alimony to your ex-spouse after your divorce comes through. But, if the marriage has lasted for only a short duration, the court may not order for the alimony. Moreover, when you and your spouse are earning almost the same amount of money, you may not be required to pay alimony.

But in case the court has asked you to pay alimony, you need to pay a specified amount of money every month until the time:

  • Your ex-spouse gets married again
  • The judge sets a date many years in the future
  • Your kids are no longer in need of a full-time father or mother at home
  • The judge is of the view that even after a reasonable time has passed, your spouse did not make enough efforts to become at least partially self-supporting
  • Any other important event like the occurrence of a retirement that makes the judge revise the alimony amount to be paid to your spouse
  • When any of the ex-spouses dies

Just like any other issues that arise in a divorce, you and your spouse can sit together and sort out the matter related to the amount and duration of the payment of alimony. But, if both of you cannot come to a conclusion and decide to knock the court’s doors, chances are that a trial will take place, which can cost you a lot of money and time.

When you are expected to pay alimony

Simply because you are required to pay alimony to your ex-spouse, it does not mean that you are not a good person. Instead, you should regard it as the expenses of your marriage that you had thought would continue until one of you die. However, that did not happen for-what-so-ever reasons. The history of alimony has been continuing for hundreds of years. Though it is not ordered that frequently these days, it does not mean that the court will stop ordering one of the ex-spouses to pay alimony to the other party for good.

When you are expected to receive alimony

The decision on whether you are entitled to receive alimony or not depends on how much capacity you have to earn. Your earning could have changed from the time you approached the court for receiving your alimony. It also depends on the amount of money earned by your spouse and what was the standard of your living while the marriage lasted. You could be also asked to make some alterations in both your work and life. For instance, in case you are in a part-time job and it does not pay well, you may be needed to look around for a full-time job that is likely to pay you well.

Sometimes, experts known as “vocational evaluators” can be retained in a divorce case to determine the employability and job prospects of a spouse who has not been in a full-time employment for some time now. It is important to discuss this option with your divorce attorney.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Calculating Child Support And Alimony In A Divorce

Posted by: Gerald A. Maggio, Esq.

Orange County divorce attorney; The Maggio Law FirmManaging finances during divorce is a skill every individual who is heading for a divorce needs. It’s better to be mentally prepared for a financial loss than be unprepared at all. First there is the question of property. If you’re someone who has accumulated a lot of wealth during your marriage, then brace yourself for some financial damage unless you claim most of them to be a separate property. Next, if you and your spouse have considerable difference in terms of earnings, you might end up paying a certain amount as alimony. And lastly, if you have children and you lose the custody battle, then you will have to pay for child support too.

Managing finances can be a tough job and that is why you need the help of an expert divorce lawyer. To try to limit financial hardship, calculate your expenses prior to the divorce proceeding.

Calculating child support

Child support is the money you pay for your child’s education and welfare till he/she turns 18. In few cases, the support can continue till the age of 21. The amount that you need to pay for child support depends on many factors. Your annual income plays a deciding factor and so does your ability to take debts. If you’re the non-custodial parent, then prepare yourself to pay more than your spouse. Other important factors which the court will look at is the age of your child and who is paying for the health insurance.

Calculating Alimony

Usually alimony is calculated after child support. The court will look at your financial capability to support your spouse after you have paid for child support. Unlike child support which is based on what is good for the child, alimony calculations are based on how much you can provide to your ex. Factors like income, property and child support is taken into consideration while calculating alimony.

Conclusion

It is important to manage your finances during divorce. It should be done through an experienced divorce lawyer because it not unusual to lose a lot of money during divorce and only a lawyer can help you take the best decision. Calculating your alimony and child support expenses will help you make good decisions regarding finances. Bankruptcy is one of the major pitfalls of divorce and good financial management is only way to survive it.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Concepts About Terminating Spousal Support

Posted by: Gerald A. Maggio, Esq.

Divorce attorneys in Orange County; The Maggio Law FirmTerminating spousal support is a big issue. The party that is receiving the support wants to be supported for as long as possible and the party that is paying for the support wants to end it as quickly as possible.  There are reasons for ending spousal support, such as:

  • The person getting the support may no longer need it as they are self-sufficient
  • The person paying the support might not be able to afford to pay for it any longer
  • The person getting the support is making no efforts to be self-sufficient
  • The person getting the support has remarried

How to terminate spousal support?

The first step to terminating spousal support is to assess the living conditions of both the parties and the length and flexibility of the support. The attorney should then find out if the court order has a Gavron warning attached to it. A Gavron warning is a warning issued by the court that requires the person receiving the support to become self-sufficient within a reasonable amount of time.

For marriages that last less than 10 years, that reasonable amount of time for payment of spousal support is usually half of the length of the marriage. Marriages that are longer than 10 years have a different set of rules to follow. A point to be noted is that there is no such thing as a lifetime support. According to California Family Code Section 4320, the spouse who’s getting supported should become self-sufficient within a reasonable amount of time.

After assessing the spouse who’s getting supported for the steps that he/she is taking to become self-sufficient, the attorney will build a case to bring it to the court. If the spouse getting supported has increased earnings, the attorney can argue to reduce the alimony and possibly reduce it or terminate it if possible. If the ex-spouse hasn’t started working yet, a vocational examination can be done to determine the ex-spouse’s ability to work. These methods can be effectively used to reduce the alimony to an eventual zero.

Also, Family Code §4322 can be used as a potential argument to terminate spousal support if the ex-spouse:

  • has no children
  • has or acquired a separate estate from inheritance that earns income
  • has income from employment

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Collecting Unpaid Alimony in California

Posted by: Gerald A. Maggio, Esq.

Top divorce attorneys in Orange County; The Maggio Law FirmAlimony is the money payable by the higher income earning party or spouse to the lower income earning party after the couple has separated or divorced. Usually, a family court issues an order stating the amount of alimony or spousal support payable by the financially more stable partner to his or her spouse until the latter can find a better job or marry someone else whichever is earlier.

Remedies available to the aggrieved spouse to whom alimony is payable

In the state of California, the judge considers 13 different circumstances when he or she has to determine the amount of alimony payable and the period of time for which it will be payable. Spousal and child support is compulsorily payable by the person whose name is mentioned in the court order passed. If the spouse who is supposed to make regular alimony payments fails to do so within the stipulated periods of time, then the other spouse can exercise remedial measures against the defaulting party.

The spouse can first apply to the spousal or child support agency that is handling your case and asks for an enforcement order to be passed. The agency will then calculate the amount of alimony due from the other spouse mentioned in the spousal support order previously passed by the family court and order the same to be paid by the defaulting spouse. The spouse will be required to state his or her reasons as to why the alimony payments were not made on time and will be given a reasonable amount of time to arrange for the money.

What are the more serious steps that can be taken against the defaulting spouse?

The spouse to whom the alimony is payable to is required to keep detailed statements and information about the alimony payments made, time of payments, etc. before initiating any legal action or court proceedings against the other spouse. If the defaulting spouse ignores to make payments after being notified by the spousal or child support agency, the agency can then issue spousal support orders by garnishing bank accounts or wages of the defaulting spouse, seizing his property, suspending his driver’s license and other work licenses. California laws allow these agencies to issue garnishing orders to the spouse and divert state or federal tax refunds.

Last resort remedial measures that can be taken

If after all this the spouse fails to pay the alimony the spousal support agency and the aggrieved spouse can file a motion for a personal hearing in the family court that handled the same divorce case. This is a form of income for withholding support and is available on the California Courts website. The motion for the hearing has to be served to the defaulting spouse by the court and the purpose of this hearing is to discuss the financial arrangements between both spouses and offer all remedies available to the aggrieved party and make sure alimony is paid.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

 
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