PERMANENT SPOUSAL SUPPORT
The issue of permanent spousal support may arise in your case. It must be remembered that there are two components to the issue of permanent support. The first component is the amount of money, if any, to be paid by one spouse to the other. The second component is what we call the “reservation of jurisdiction” issue. Even if the court determines that no money should exchange hands between the spouses as and for spousal support, the issue still remains whether the court will keep the proverbial “foot in the door” and allow the supported spouse to come back and ask for spousal support in the future, upon a showing of a material and substantial change in circumstance.
Basis for the Amount of Spousal Support, if any, to be Awarded
In arriving at the appropriate amount of permanent spousal support, if any, the court must consider the marital standard of living and the following circumstances:
- The earning capacity of each spouse taking into account: (A) Marketable skills of the supported spouse, the job market for those skills, the time and expense required to acquire education or training to develop those skills, and the possible need for retraining or education to acquire other, more marketable skills; (B) The extent to which the
- supported spouse’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported spouse to devote time to domestic duties; and, (C) The extent to which the supported spouse contributed to the other spouse’s obtaining of education, training, “a career position”, or a license.
- The needs of the parties.
- The obligations and assets, including the separate property of each.
- The duration of the marriage.
- The ability of the supported spouse to engage in gainful employment without interfering with the interests of dependent children in the custody of one spouse.
- The age or health of the parties.
- The immediate and specific tax consequences of support.
- Any other factors the court may deem just and proper.
Normally, the most important criteria to be considered by the court is the marital standard of living; the earning capacities and needs of each spouse and the duration of the marriage. The court must first determine that the supported spouse actually has a need for support. This is determined by arriving at the reasonable expenses, measured by the marital standard of living, of the supported spouse and subtracting from that a portion of the income of the supported spouse. This income cannot only be from wages, but may also be as a result of the property division.
Factors Affecting the Reservation of Jurisdiction of Length of Support
The duration of the marriage is very important, since the longer the marriage, the longer support is normally paid. The California Supreme Court has ruled that in a lengthy marriage, the court must, at a minimum, reserve jurisdiction over spousal support until it can be proven that the supported spouse no longer needs support. The shortest lengthy marriage that has fallen within this rule has been a seven-year marriage. This is the only case to go that low, although other cases have held that a nine or ten year marriage is considered lengthy. Numerous cases have held that a trial court may not terminate spousal support, in a lengthy marriage, at some date in the future unless there is hard evidence of the fact that the supported spouse will not need support at the time that the order calls for the termination of the support. This is virtually impossible to prove. Thus, in a lengthy marriage the court will almost always retain jurisdiction for an indefinite period of time. Therefore, the supporting spouse must bring a motion to terminate spousal support at sometime in the future.
I can certainly understand why a spouse in need of support not only desires, but often demands that he or she be paid support. However, you must keep in mind that the payment of spousal support has certain ramifications. First of all, it is taxable to the receiving spouse and tax deductible by the paying spouse. Thus, if you were to receive $1,000 per month in spousal support, depending on what our other income (including investment income) is, you could pay as much as 45.25% of that to the state and federal taxing authorities. Furthermore, spousal support will terminate automatically upon your re-marriage. Often this can be a few months after the divorce and, experience has shown me that, it likely will be within two or three years after the divorce. Thus, as a practical matter, we may only be talking about receiving support, no matter how long the court would ordinarily order it to be paid, for only a matter of a few months or a few years.
It must also be remembered that if you receive support because you are unemployed and you subsequently become employed, the court will reduce the amount of support by anywhere from 50-100% of your take-home pay. Since the court often does not award sufficient spousal support and/or child support for the receiving spouse to live comfortably, the receiving spouse must seek a job. Even if the court awards sufficient support for the receiving spouse to live comfortably on, the court may nonetheless expect the spouse to commence work in the near future. This is very dependent upon the facts of each case, particularly the ability of the receiving spouse to engage in employment without
interfering with the interest of dependent children and the custody of those children. All of these points are important to remember in order to keep the issue of spousal support in perspective.
Wage Assignments for the Payment of Spousal Support
A wage assignment is a device whereby an employer is ordered to deduct from an employee’s pay check certain amounts to be paid to the employee’s former spouse as and for spousal support. It is a method that ensures the timely payment of spousal support.
Wage assignments for spousal support are not automatic as is the case with child support. The court must issue a wage assignment, without notice to the defaulting party, upon a petition by the recipient, alleging that the payor is in arrears in a sum equal to the amount of one monthly payment within the 24 month period immediately preceding the filing of the petition. The assignment is not effective until 10 days after the service on the employer. Within 10 days after service, the employer must deliver a copy of the assignment order to the payor who then has 10 days to move to quash on the grounds that (1) default in the amount alleged has not occurred within the past 24 months, or (2) the amount is not owed. The employer is to continue withholding until served with a notice that the motion to quash has been granted.
TEMPORARY SPOUSAL SUPPORT
In many circumstances it is necessary for the court to make pendente lite (temporary) orders pending resolution of the entire proceeding. For example, a wife may be unemployed or have insufficient funds for the support of herself and the children. Thus, pendente lite child support and/or spousal support may be necessary. Furthermore, there may be a dispute as to the custody of the children or who will remain in the family residence. Pendente lite orders in this regard may be needed. It is not uncommon to request pendente lite attorney’s fees and costs as well as mutual restraining orders, restraining both parties from harassing and annoying each other and selling or disposing of any assets, except in the normal course of business or for the necessities of life.
In considering the amount of pendente lite support to award (you must distinguish between “pendente lite support” and “permanent support” which will be discussed later), the court attempts to maintain the status quo of the parties. The difficulty is in determining the amount to be awarded to the moving party.
Normally, there are insufficient funds to support the family when it lives together, let alone two families when they live under different roofs. Most courts, including Sacramento County, have adopted a schedule for temporary support. According to that schedule, a spouse in need of support, typically the wife, is entitled to 40% of the other spouses’ net disposable income with an appropriate deduction for the supported spouse’s income. You must remember that this is a guideline for the court to follow. The courts will follow the guideline in 90% of the cases. To the extent there are unusual circumstances, the court may raise or lower the indicated amounts. In the final analysis, how much a court will award is a question that varies largely from case to case and sometimes from judge to judge.