Divorce Magazine Podcast: Modern Spousal Support in California
November 13, 2018
In this podcast, Certified Family Law Specialist David Lederman discusses spousal support in California. There’s a lot of confusion about spousal support these days, and Contra Costa County divorce attorney David M. Lederman is here to set the record straight.
Diana Shepherd, Editorial Director, Divorce Magazine
David Lederman, Certified Family Law Specialist
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Read the Transcript of this Podcast Below.
Welcome to our podcast on Modern Spousal Support in California! My name is Diana Shepherd, and I’m the Editorial Director of Divorce Magazine and Family Lawyer Magazine. There’s a lot of confusion about spousal support these days, and Contra Costa County divorce attorney David M. Lederman is here to set the record straight. Certified as a Specialist in Family Law by the State Bar of California, he is currently a Director for the Association of Certified Family Law Specialists. The National Association of Distinguished Counsel has named him a “Nation’s Top Attorney” every year since 2015 – an honor awarded to less than 1% of practicing attorneys in the United States. A frequent speaker and writer on family law topics, David has successfully negotiated long-term spousal support as well as complex and contentious support cases.
Diana Shepherd: David, what is the purpose of spousal support?
David Lederman: In its bare bones, essentially from a theoretical perspective, it’s to enable the supported spouse to become self-supporting within a reasonable amount of time. That amount of time might vary based on the duration of the marriage or on the skills of the spouses, and it might not actually be obtainable based on the spouse’s age and educational background. The purpose in a nutshell is to enable that spouse to become self-supporting.
Is spousal support taxable?
At the moment, yes. This is now November 2018, and orders for spousal support entered by the end of this year 12/31/18 ought be tax deductible to the payer and taxable income to the payee. However, under the new federal tax legislation, that changes as of 1/1/19. Any orders entered into prior to that 1/1/19 date ought to still be taxable income to the payee and deductible for the payer – although the regs aren’t completely out yet and we’ll have to see how this evolves over time.
Who’s entitled to spousal support in California, and what’s the criteria for awarding it?
Spouses. Spousal support as I mentioned previously is to enable the supported spouse to become self-supporting, and it’s tied to the marital standard of living. In making a long-term judgment – sometimes referred to as a permanent spousal support order – the court’s required to weigh factors that are set forth in Family Code section 4320. These are largely equitable factors – again, tied to trying to maintain both spouses at the marital standard of living.
Infrequently can a spouse support the other spouse at an amount that’s the same as they had during the marriage. The reality is it costs more to have two households than just that one, and so there’s an economic reality there. But sometimes, a spouse has a huge increase in income and they can maintain both themselves and the spouse at the marital standard of living. The court’s job in making a support order is to do justice, do equity between the parties, and they do that by weighing the factors; as long as the court weighs the factors, they have a lot of flexibility in determining what amount meets that requirement.
Do you have to be legally married to qualify for spousal support in California, or is a common-law partner also entitled to receive spousal support?
The first part of the answer is yes, you have to be legally married because there are no common-law partners in California. I’ve heard rumors, though I haven’t researched this, that California had some system of common-law marriage in the 1800s, but that was a very, very long time ago. It was phased out by the Civil Code and then the Family Code, and I have never heard of somebody old enough to actually qualify as a common-law partner. In fact, I think there’s been one case in the history of jurisprudence in California that has actually found for a common-law partner, but the reality is it just doesn’t exist today in California anyway.
In terms of unmarried couples, what if they live together, own a house together, have children together, and then one stays home and takes care of those children just the same way that they would if they were legally married. Is there anything to help the stay-at-home non-spouse get back on their feet and become self sufficient after they’ve stayed home with the children?
The non-spouse will always have the option to get child support of course because that’s unrelated to marital status – it’s related to the amount of time each parent spends with the child, their respective incomes, and it’s to enable the child to share in the lifestyle of their parents. Regarding the spouse, though, simply looking at their own maintenance, if there is an agreement that the parties have entered into either orally or in writing – where one spouse agreed to support the other spouse – that agreement could be enforceable under a case called Marvin v. Marvin.
What you’re talking about in this situation is enforcing contracts between the parties as opposed to the concept of there being a common-law marriage. Common-law marriages don’t and have not existed in California, but this Marvin case kind of sits in the nether regions of what would be this concept of common-law marriage and an actual marriage. Again, it focuses on enforcing contracts or agreements between the parties.
Is the amount of support tied to the number of years a couple were married?
Potentially. The amount of support is tied to the marital standard of living, the duration is tied to the number of years they’re married. The amount that they need for a short-term marriage is likely to be lower than the court would allow for a long-term marriage; again, the objective is to lend a hand to the spouse who is not the high earner to segue towards self-sufficiency and independence.
You mentioned that the intent for spousal support was to have one spouse become self-sufficient; what if a divorce takes place in someone’s 60s and they have never worked outside the home? Is that really something that’s going to happen: this spouse becoming self supporting?
Probably not, although a couple factors might kick in if it’s a long-term marriage and the parties have acquired retirement funds. At some point, parties get to retire, and the spousal support could be set based on the amount that each of the parties respectively have in retirement. If it was a long-term marriage and they have equal retirement and social security, then there probably wouldn’t be support. If there’s a huge disparity, though, because there’s a significant amount of separate property and retirement plan, then the support could continue up until one of the parties passes.
How does a judge determine the amount and duration of alimony someone is going to receive?
For a marriage of long duration, the duration of spousal support doesn’t necessarily have a limit. Its objective is to maintain both spouses’ marital standard of living and to enable the supported spouse to become self supporting within a reasonable amount of time, but there’s no deadline to do that. For a short-term marriage – and that’s a marriage of less than 10 years – the presumed duration of the spousal support is one-half the length of the marriage. The court’s discretion to order the amount is very broad and the objective is – as I said – to maintain the marital standard of living. The amount it takes to do that varies case by case – and frequently judge to judge, as that’s an area where the court is at the height of their power. The duration of spousal support for a short-term marriage is one-half the length of the marriage, and as long as the court is exercising its discretion under the 4320 factors, the court has broad discretion to enter almost any award as long as they’ve discussed the factors laid out in Family Code section 4320.
Under what conditions might a judge order indefinite or permanent spousal support – and how common is this in California?
That’s an interesting question because for a long-term marriage – and that’s anything more than 10 years, a marriage of duration of more than 10 years – it is going to be indefinite or permanent. I don’t like using the word “permanent” because really there’s nothing permanent about spousal support, at some point it ends. One of the parties passes, that’s a terminating event, if the recipient of spousal support remarries that’s a terminating event, if you hit the term of an order, that can able be a basis for terminating. If it’s a long-term marriage, the court does not have the discretion at the time of trial to include a termination date. The court would make an order and at some point further down the line one of the parties could ask to modify or terminate spousal support.
We often think of spousal support as something that traditionally men have paid to women; of course, times have changed. Do men receive spousal support these days?
Of course, the code is gender neutral. In fact, there are marriages now between men and men and women and women, it doesn’t make a difference, a spouse has a right to request spousal support under the terms of the Family Code and it doesn’t matter what the gender is.
What can the spousal support recipient do to protect against the payments ending with the payer‘s death or disability?
Insurance. That’s easy: the parties can agree that one party will maintain or get life insurance to ensure that the supported spouse has income to live if it’s necessary. It might be a situation where the person receiving spousal support pays for that insurance because it’s not necessarily part of the code to order that life insurance. Remember, under the Family Code, death is a terminating event for spousal support. If you want to get around that with insurance, what you’ll frequently see is the supported spouse, the person receiving spousal support, would include a request and possibly an order that says that they can obtain insurance on the other party’s life in the event that they pass as that security.
What if the payer is uninsurable?
If they’re uninsurable, there’s not a whole lot of options, the reality is death is a terminating event for spousal support, under the code. If a spouse passes, support ends. If they become disabled and are unable to continue to perform their job, that would be a basis to modify spousal support. Whatever the court order is, that order will continue until by its own terms it ends or a party asks to modify it based on change in circumstances.
Can someone receive spousal support before the divorce is final, and do they have to go to court to get it?
Yes and yes. Temporary spousal support is available under the Family Code section 3600, and the purpose of temporary support is to enable the spouse who needs it to get support for the duration of the divorce proceedings. It is analyzed differently than permanent spousal support. For permanent spousal support, the court has to weigh the factors in Family Code section 4320 – but for temporary support, each county has a guideline calculation, a shorthand, that takes into account the party’s respective net incomes and just run an algorithm to say “Okay, based on these respective incomes this is the amount that the payer will pay the payee again for the duration of these proceedings.” It’s a stop-gap measure because in making a permanent support order, the court needs to listen to evidence and weigh factors. This calculation will be done on a short cause calendar relatively quickly and it gives the parties who need it immediate relief.
We were just talking about spousal support before the divorce is final, let’s switch to after a divorce is final. Can alimony be awarded if somebody’s circumstances change after divorce?
It depends on whether or not there was a reservation of jurisdiction over spousal support in the judgment; if there is a reservation of jurisdiction, then the court has the power to come back and issue a support order. Was there an amount set and it needs to be changed because circumstances have changed? Well, that’s a basis to come back post-judgment after the divorce is final to request to modify that support order.
How does the recipient determine how much spousal support they’ll need? What if they overestimate or underestimate their need for support?
In my experience the recipient usually isn’t underestimating the amount of support they need; they simply want to get as much as they can because it’s going to help them get through the next phase of their life. It’s not really an issue of underestimating, but the reality is if you want to weigh these factors … it might be incumbent on the recipient to get a financial planner, to work out a financial plan so that they can be on the path to self sufficiency, they understand the resources they have, and what they’ll need to get through at least the interim period after divorce to either the next relationship or through retirement. A financial plan is frequently a good idea for a supported spouse.
Is there a difference in tax treatment of spousal support versus child support?
For the immediate present, yes. Until the end of this year, spousal support is tax deductible to the payer and as income to the payee, and it will remain that way if the order is entered into prior to the end of 2018. However, for all orders for spousal support entered into after 2018 under the new tax law, spousal support is not tax deductible to the payer or income to the payee. It’ll be treated like child support, and child support is not deductible: it’s essentially a cash exchange between the parents after taxes, it doesn’t go into tax calculation.
Diana Shepherd: My guest today has been Contra Costa County divorce attorney David Lederman, who has handled divorce cases from relatively simple to extremely complicated. The team of experienced family law attorneys at the Law Offices of David M. Lederman are ready to fight hard to protect your assets and achieve fair property settlements; if necessary, they will litigate aggressively to protect your rights and achieve your goals. If you have questions or concerns about property division in your California divorce, visit www.ledermanlaw.net