Spousal support is often awarded at an Order to Show Cause on a temporary basis, where one spouse is unemployed or earning significantly less than the other spouse. The theory behind these temporary orders is to assist the parties in reallocating the money they used for their living expenses now that they are no longer together. While there is no formal guideline for spousal support in use in most Northern California counties and courts, these jurisdictions are using the support calculators initially designed for child support in calculating temporary support. Keep in mind that the formula to calculate spousal support after a dissolution judgment has been entered is different than this temporary formula.
Spousal support is gender neutral. The driving force behind awarding support is the need of the spouse not if they are either the husband or the wife. For example, if you have a husband that worked at lower wages than the wife during the marriage, he may be entitled to spousal support.
At the order to show cause hearing for temporary support, the judge may not be immediately concerned about the employability of the spouse needing support. Instead, at this stage, the judge merely wants to preserve the status quo and provide the spouse in need of support with sufficient income for basic needs, consistent with the parties’ life style.
At the trial of the dissolution, the California Family Code provides the judge with a long list of factors that are to be considered in determining the amount and duration of post judgment spousal support. This list includes such factors as the length of the marriage, the age of the parties, the parties health history, the parties’ prior living standard, the extent to which the supported spouse contributed to the attainment of an education or professional license by the other spouse, the presence of young children in the home, and the employment opportunities available to the spouse requesting support.
In general, where the marriage has lasted more than 10 years, the court will, at the very least require a “reservation of jurisdiction.” This means that, even if there is no current order for spousal support, a spouse requesting support will be permitted to come back to court at a later date should the need arise. In marriages of less than ten years, spousal support may be paid for approximately one-half of the length of the marriage.
However, each spousal support case is driven by the unique facts and circumstances found in the parties lives. For example, if the person receiving spousal support was a victim of domestic violence and the assailant was the other spouse, this event and the resulting injuries could affect the amount and duration of the support.
The Internal Revenue Code provides that all spousal support payments are tax deductible by the paying spouse and taxable to the recipient spouse as “ordinary income.” For this reason, it is not uncommon for a carefully negotiated settlement to include the payment of a high amount of spousal support, because such a payment results in tax benefit to the higher earner spouse paying the support.
Medical benefits are another asset you must consider preserving as a part of the total spousal support plan.
Under Federal Law you might be entitled to keep your medical insurance benefits under your former spouse’s group plan. The Consolidated Omnibus Budget Reconciliation Act of 1985 created what are commonly known as “C.O.B.R.A.” benefits, which are available to the former spouses of people who work for employers who have 20 or more employees.
In general this law provides that employers must offer “continuation coverage” for the first three years after the termination of the marriage. The law further provides that the employer can charge the former spouse for this coverage, but the charge cannot be more than 2% greater than what is charged to employees.
After the three years have ended, the law states that the employer must offer a former spouse the right to purchase “conversion coverage”, but there are no limits on how much the employer can charge for this coverage.
The former spouse does not have to pass a physical examination in order to obtain the continuation or conversion benefits. This is significant if you have any pre-existing conditions that might not be covered by another medical insurance carrier.
If you wish to have your C.O.B.R.A. benefits you must contact your former spouse’s employer directly and request the appropriate forms. This is not a service that is customarily performed by the family law attorney. You must contact your former spouse’s employer directly if you want to obtain these benefits.
The proper calculation and duration of spousal support demands a complete understanding of developing California law on this topic. For these reasons, it is always best to have an attorney represent you.
Arlene D. Kock, APLC has its principal office in San Ramon California. Ms. Kock’s practice for the last 40 years covers all aspects of family law.
Will I have to pay spousal support?
Chances are if you make significantly more money than your spouse, you will have to pay spousal support. The general rule is that you will be expected to pay for one-half the number of years you were married, unless your spouse becomes self-sufficient, moves in with someone or remarries.
How is spousal support calculated?
Depending upon the stage of the proceedings (e.g., whether the request is for temporary orders or permanent orders), each court utilizes a variety of factors. The judge will attempt to weigh all the factors specified by statute and appellate case law, and endeavor to make an order which will achieve “a just and reasonable result in each case”. Some judges may compute 40% of the payor’s net income less 50% of the payee’s net income where only spousal support is an issue. If child support is an issue, then the judge may compute 35% of the payor’s net income excluding child support paid by the supporting parent less 40% of the payee’s net income.
What happens if I remarry, do I still get to receive spousal support?
The obligation to pay spousal support terminates upon the remarriage of the supported party unless the parties have agreed in writing to continue support.
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