The Court has the authority to order temporary spousal support in the beginning of a divorce or legal separation case dependent upon the financial circumstances of the parties. Temporary spousal support is not intended to be a permanent order. The Court does not have sufficient information at the beginning of the case to make permanent spousal support orders. Temporary spousal support is normally based upon a guideline spousal support calculation. A Judge will normally use the DissoMaster program to calculate temporary spousal support. This spousal support order will remain in effect until the time of trial or until the parties submit a Marital Settlement Agreement as part of the final Judgment. The primary focus in setting temporary spousal support is the need for spousal support, and the ability to pay spousal support.
Permanent Spousal Support
The Court is required to consider the various factors under Family Code §4320 in setting permanent spousal support. Permanent spousal support is set at the time of trial or as part of the Marital Settlement Agreement that is submit with the final Judgment of Dissolution of Marriage (or Legal Separation). The Court is prohibited by law from relying upon a computer program (such as DissoMaster) to calculate guideline spousal support since the Court is required by law to consider all factors under Family Code §4320. The Court is required to take into consideration not only the marital standard of living, but the length of marriage, age and health of the parties, the marketable skills of the supported spouse, the need for spousal support, the ability to pay, the earning capacity of each party, assets and liabilities of each party, domestic violence issues, and the ability and the need of the supported spouse to obtain education and training so that he/she can become self-supporting. The Court must determine the marital standard of living, which normally means the incomes enjoyed by the parties during the marriage. However, the marital standard of living may also include factors such as real property owned, vehicles driven, vacations taken, and restaurants/entertainment enjoyed by the parties during marriage. A permanent spousal support order will remain in full force and effect until it is modified by the terms of the order or by a modification order at a future date.
How Long is Spousal Support Paid?
The duration of spousal support depends upon how long you and your spouse were married. The Court considers the period between the date of marriage and the date of separation. The date of separation is the date that the parties are no longer living together, and objectively function as single individuals. In other words, the parties no longer socialize together, do not share joint financial accounts, no longer hold themselves out as husband and wife, and do not acquire joint assets together. There is a presumption that spousal support will be ordered for one-half the length of the marriage in marriages of under 10 years. If spouses are married for more than 10 years, then the Court will normally issue an open-ended spousal support order. This means that the Court will not place a termination date upon spousal support, but the Court reserves jurisdiction to consider terminating spousal support at a future date. It is important to have an experienced family law attorney who can negotiate or litigate an appropriate spousal support order, taking into consideration the duration of marriage, the marital standard of living, and all other relevant factors. If you have a spouse who has a significant obligation to pay spousal support to the other spouse, then this is a major factor that must be considered in negotiating a settlement of the case. Spousal support is always terminated upon the death of either party or the remarriage of spouse receiving spousal support, unless the parties agree in writing otherwise.
Taxability of Spousal Support
Spousal support is taxable as ordinary income to the payee spouse under the Internal Revenue code. The payor spouse is permitted to deduct spousal support (or alimony) for purposes of his/her tax returns. It is important for each party to understand the tax consequences of spousal support. The recipient spouse should understand that the receipt of $1,000.00 per month in spousal support does not mean that that person wlll actually be receiving $1,000.00 because income taxes are payable on that amount. Likewise, it is important for the payor spouse to understand that there is a tax benefit to paying spousal support so this factor must be considered in any agreement or order relating to spousal support. It is important to receive proper tax advice from an expert to make estimated tax payments if you are receiving a substantial spousal support order or you will owe a large tax liability at the end of the year.
Modification of Spousal Support
Either party may request a modification of permanent spousal support based upon a material change of circumstances. The party requesting a modification of spousal support has the burden to prove that there has been a change of circumstances. A change of circumstances can include a change of income, payment of spousal support for a significant period of time, the recipient spouse no longer receiving child support for minor children, and either spouse having a significant change in employment. The Court will normally make an order modifying spousal support effective on the first day of the month following the date the motion to modify spousal support was filed in the event that the Court finds that there is a basis to modify spousal support. The Court is required to consider all factors under Family Code §4320 in considering a motion to modify spousal support.