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Understanding Permanent Spousal Support Duration

Now, this week we move on to the discussion regarding permanent spousal support. As a reminder, last week we discussed a simplistic approach to temporary spousal support. There, the focus was which spouse had the ability to pay and which spouse had the need for money. Generally, it really is that simple. And remember, a spouse most likely will seek temporary support before the divorce is final. Hence, the word temporary.

However, permanent spousal support is a much different approach. First, a spouse obtains permanent support when the divorce is final. This is when the court enters a judgment. Second, the spouse seeking permanent spousal support must prove 14 different things to the court outlined in a California law. Just like there are criminal laws and driving laws to follow, California has an entire body of law for family law—called the California Family Code. Thus, the rules to follow when seeking permanent spousal support can be found in California Family Code Section 4320. Such factors in Section 4320 include how much each spouse does earn and can earn, the assets each spouse owns, and the length of the marriage.

But, what is most important to know here is that the court will look at all of this through its special lens—called the marital standard of living. Thus, if feasible, the supported spouse will generally obtain support to the extent so he/she can continue to live at the standard the spouses maintained during the marriage—which could be middle class, upper middle, or upper class. This martial standard of living concept is often met with resistance by the supporting spouse. And such phrases are often blurted out when a supporting spouse is confronted with paying support: “What do you mean I have to now rent an apartment so my ex-spouse, who does not work, can still live in the 5 bedroom house?” Note, though, that there is a caveat here.

And such caveat is as follows: The word permanent really is a misconception. Thus, to answer the title question: “No, you may not have to pay spousal support forever. So, to keep this simple, the length of the marriage often is a significant factor the court will consider. As such, if you were married for fewer than 10 years, it is likely that the court will set permanent support for half the length of the marriage. However, where the marriage is more than 10 years, the court will exercise its discretion, especially weighing the 14 factors mentioned above in that very important law—California Family Code Section 4320.

So, although spousal support may not be forever, many of you may be asking the follow-up question: Once the court determines the length of permanent spousal support, does that mean I must pay for that entire time? The answer: It depends. To the delight of some, and the dismay of others, permanent spousal support can be challenged after the divorce is final. Such a challenge is called either a modification or termination. A spouse may seek to modify or terminate support possibly three years, two, years, or even one year after the divorce is final. But, note that this is not an easy hurdle to overcome to make this change. The ex-spouse seeking this change must prove to the court that there has been a change in circumstances that warrant this modification or termination. Note that the spouse seeking this change cannot just re-argue again what he/she argued at court the first time. The spouse seeking this change must show certain things—such as being terminated from his/her job or resigning from a job for retirement. But, be careful not to get any bright ideas like earning less on purpose to minimize support or to obtain more support. It is likely that the court will see through such a sham.

Please know that the above was kept in the simplest form to help you understand a very complex and, as you know, highly contested issue. As many areas of law, the complexity is understood and handled well by an attorney. Thus, it’s helpful to know that an experienced family law attorney is a phone call, or email, away to help provide guidance before the marriage, at the difficult time of dissolving the marriage, and during post-judgment issues.

Do I Have To Pay Spousal Support Before The Divorce Is Final?

Understanding Spousal Support

Spousal support. At this point, since you’ve made it to the website and are reading this article, you are either trying to figure out how to minimize your obligation to pay support or how to maximize your opportunity to obtain support. In fact, what’s important to note here is that spousal support is a very complex matter. And a very heated matter as well. Such questions often emerge: “Why do I have to pay him support?! I’m the woman.” Or, “Really, I have to pay her support even though she has a college degree and refuses work right now?!” It’s obvious, then, that spousal support may be the most contested issued during a divorce. So, let’s see if we can simplify a few things for you to get you started during your investigation.

A good starting point is to think about need vs. ability to pay. To keep this in very simplified form, often this is the lens the court will look through when awarding temporary spousal support. Wait, what do you mean temporary? Could it go away? And, does that mean there is also permanent spousal support too? Yes, and yes to the last two questions.

Temporary spousal support is very different than permanent spousal support. Temporary spousal support can begin (ready for this?) just days after one spouse files for divorce, which could be months or years before the divorce is final. To keep this simplified then, temporary support is before the final judgment, and permanent support is after the final judgment.

Understanding the timeline of the divorce will help: Once a spouse files for divorce with the court, California law will not allow the divorce to be final until at least 6 months have elapsed. A divorce can become final such as when (1) once the spouses agree in writing to such things like how the property will be divided or where the children will live and the judge signs off on this agreement; or(2) the divorce can become final after the judge rules on the parties’ disputed issues at a trial.

However, before the divorce becomes final, one spouse often seeks temporary spousal support. So, how do you get temporary spousal support? Like mentioned above, the court will weigh one spouse’s “need” against the other spouse’s “ability to pay.” That’s pretty much it for temporary support. This is relatively simple hurdle. So, to be blunt, the spouse earning more money will generally pay temporary spousal support.

So, now the bigger question: How much? The judge often will determine the amount of support by using a computer program called a Dissomaster or X-Spouse. That doesn’t help you now to determine what your obligation, or benefit, may be, does it? So, to help you, but to keep this in very simplified form, a support-paying spouse, for example, with no children, and where one spouse is employed, and the other spouse is unemployed, may expect to pay around 30% of his/her salary to the other spouse. You must know that this temporary support can last for months, or even years, until permanent spousal support is awarded.

For this article, though, our discussion is limited to temporary spousal support. Permanent spousal support is much more complex. In fact, a support-seeking spouse must provide proof of 14 different factors outlined in the law. Therefore, such discussion will need to be reserved for another time. Please note that the above information was kept in simplest form to help give you a primer of a situation that is important to know when considering divorce. As many areas of law, the complexity is understood and handled well by an attorney. Thus, it’s helpful to know that an experienced family law attorney is a phone call, or email, away to help provide guidance both before the marriage and at the difficult time of dissolving the marriage.

Common Tax Question Before and After Divorce

Taxes can be a pain to deal with every year, although they have to be done. On top of pains that comes with taxes, inserting a divorce into the equation can be that much more stressful. However, it doesn’t have to be if you are aware of common questions and issues that come with tax preparation. Luckily, provided below are very common tax questions and answers to those questions. You don’t have to worry about embarking into tax preparation on your own, a nice family law attorney and accountant can be there to assist you and help you find the best suiting financial path.

  • Starting off, some people don’t know that spousal support received is considered taxable income, but it is. The paying spouse can deduct those payments on their own tax returns, so that is something to be aware of. Child support, on the other hand, it not tax deductible or tax includable. Since it comes out of post-tax dollars, it has already been covered for.
  • Existing California and federal law allows the parent with whom the child stayed the greater number of nights is entitled to claim dependency exemption. The other parent, the “noncustodial” parent, usually cannot. However, if you agreed with your ex during the divorce to allow the noncustodial parent to claim the child, the IRS will honor it. It’s common that parents will agree to alternate claiming the child to split tax exemption. If you divorced recently, your spouse needs to fill out IRS form 8332. If you divorced prior to 2008, you just need to attach the divorce court order to your tax return.
  • Since disagreements, hostility, and heated disputes are very common when going through a divorce, it is suggested that you keep detailed records of support payments received, paid etc. to avoid any of those disagreements.
  • Even if your divorce is not considered “final” by the end of the year, you are still allowed to file an individual tax return. It is suggested that you consult with your personal accountant or tax preparer for the best options, but it is likely that they will have you file married but separate or file jointly spouse.
  • When you begin preparing your tax return for the year, it’s suggested that you ask for advice on deducting attorney and/or accountant fees for state and federal income tax purposes if you decide to you down that route.
  • Whenever you start preparing your income tax returns, you should always visit the IRS web site to access the specific manual entitled Tax Information for Divorced and Separated Individuals. This can help additionally with any specific questions or concerns that may arise when filing your taxes for the year.
  • Thankfully, for any spouses whose exes had an inaccurate joint tax return, there are now laws entitled “innocent spouse” that were put into place to protect these victims. If this described situation applies to you, you can find out how you may benefit by visiting the Innocent Spouse and the IRS.

Hopefully, with the tips provided above, this specific information can help you during your divorce and help you better understand the process of tax preparation. Also, your Family Law attorney and accountant can be just as helpful during this process. Don’t be hesitant to ask them questions and for help along the way. Contact your divorce attorney because your financial future depends on it!

Spousal Support & Cohabiting

Spousal support is often the largest financial obligation you will incur as part of your divorce.

Cohabitation refers to a couple living together in a romantic relationship without the benefits of marriage. In the aftermath of a divorce, if you move in with your boyfriend or girlfriend, it can give your ex the opportunity to stop paying spousal support.

Couples are encouraged to sign a cohabitation agreement detailing their obligations and rights to each other, and defining their liability and property rights. Since oral agreements may be difficult to prove, it is advised that couples consult an experienced Family Law attorney before entering into any agreement.

How about the person paying spousal support to his or her former spouse and now that spouse is living with another person?

According to the California Family Code 4337:

  • Except as otherwise agreed by the parties in writing, the obligation of a party under an order for the support of the other party terminates upon the death of either party or the remarriage of the other party.

4338. In the enforcement of an order for spousal support, the court shall resort to the property described below in the order indicated:

  • The earnings, income, or accumulations of either spouse, while living separate and apart from the other spouse, which would have been community property if the spouse had not been living separate and apart from the other spouse.
  • The community property.
  • The quasi-community property.
  • The other separate property of the party required to make the support payments.

If you are the person trying to cut off the spousal support award, you bear the burden of proof to the court that your former spouse is living with another person, and not just spending the night. You may wish to apply for a modification of the amount. You can plead to the court to terminate the support or at least lower it.

The laws surrounding divorce and spousal support can be complicated. For more detailed, specific information, please contact an experienced family law attorney in the law offices of Holstrom, Block & Parke to discuss your options.

We are Riverside’s Top Rated Family & Divorce Attorneys: Experienced, Aggressive, and Determined to Protect Your Rights

We are conveniently located in Orange, Riverside, and San Bernardino counties.

About Dayn Holstrom

Dayn Holstrom is a hard working, compassionate problem solver who welcomes the opportunity to serve you in any way he can. His maximum availability to your questions and concerns begins with your free initial consultation. He is well-seasoned in all matters related to family law and a skilled negotiator and litigator.

Spousal Support Vs. Property Settlement

Are cash settlements subject to tax?

In a divorce, it depends on how it is classified. If it is spousal support, it is taxable to the recipient and tax deductible by the spouse who pays it. If it is a property settlement, it is not taxable or deductible.

How do you know if your support which is taxable versus a property settlement that isn’t?

It is important for a divorcing couple to distinguish between payments that are for spousal support and those that are part of a property settlement.

This is critical, if for no other reason, than tax consequences. Spousal support is different from property distributions, which are usually without tax consequences to either spouse. Failure to properly distinguish spousal support can result in drastic consequences to the spouse paying support.

When it comes to property division, the terms and conditions of an agreement are negotiated as to who gets what. If one of the parties gets remarried, the property division is unaffected.

Support on the other hand, is often modifiable, based on changing circumstances in the future, such as changes in employment or retirement. In addition, if the recipient gets remarried the spousal support is terminated.

Spousal support continues during the lives of the spouses; property settlements are inheritable and can be enforced by the decedent’s estate.

According to IRS Publication 504, most of the rules will likely be unchanged from year to year. However, they could and if they do, it is important to speak to an experienced attorney for the help you need.

Contact the Family Law offices of Holstrom, Block & Parke if you have questions about how divorce might affect your holdings and financial status. We can help guide you through these trying decisions. We are located in Riverside and Orange Counties for your convenience.

Divorce: Emotionally & Financially Devastating

Divorce, custody battles,child support, alimony, modifications or contempt actions can be emotionally and financially devastating for everyone involved.

You need to make financial and logistical adjustments, carefully monitor your legal rights and manage heightened emotions during this stressful time. If you have children, matters can be complicated further. While these issues are basically the same for most couples, you may face very specific concerns according to your unique position.

In California, the only reason needed to end a marriage is ‘Irreconcilable differences’. In addition, California is considered to be a community property state, which means all marital property is split 50/50.

Community property consists of:

  • Home – resident, rental and any vacation properties
  • Motor vehicles, recreational vehicles
  • Financial – bank accounts, pensions, any income earned
  • Other assets – jewelry, household furnishings, art collections
  • All debts incurred

Property not included in the division would be ‘separate property’, which means any property owned before the marriage took place, including an inheritance or bank accounts which was kept separate from marital accounts.

Issues that need to be decided upon include:

  • Spousal support – depending on the length of the marriage, etc.
  • Ability of one spouse to pay the other
  • Child custody, child support, visitation – if there are children involved

At Holstrom, Block & Parke, we help clients throughout Riverside County with a wide variety of child support matters including enforcement and modification issues. We do everything we can to ensure that you receive the maximum level of support available for your children.

We will work to ensure that the income figures are accurate and aggressively argue any special circumstances that might call for additional support. We will pursue every option available to obtain the most favorable possible result in your case.

If you need dependable advice about your options during the divorce process,contact the Riverside Family Law offices of Holstrom, Block & Parke. We focus on you and your family, so you can focus on the future.

About Dayn Holstrom

Dayn Holstrom is a hard working, compassionate problem solver who welcomes the opportunity to serve you in any way he can. His maximum availability to your questions and concerns begins with your free initial consultation. He is well-seasoned in all matters related to family law and a skilled negotiator and litigator.

The Many Facets Of Divorce

Letting go of the years you spent together after your divorce is final is not always easy. This is true – even if you initiated the process.

Everything you’ve been thinking about for months and months is now a reality. You may feel out of control and even somewhat bewildered, but it’s time to move on.

It’s time to realize that your lifestyle is about to be altered by the financial settlement. You now have to worry about spousal support and child support. What about your children? They are probably the most painful part of all of this.

Your children won’t be with you every day now. You have to share custody with your ex-spouse. Don’t feel guilty – everything will eventually fall into place. You just need to agree on certain things in order to make the transition move smoothly. Having an experienced attorney by your side to help guide you through all those hard moments and make the process much more manageable to get you to focus on your new life, and all the changes heading your way.

Even when the divorce starts out friendly, it doesn’t mean it will stay that way. Battles take place while working through all the details. Fear and anger can take control while listening to well-meaning friends.

Are you going through a divorce and feel that stress is about to take hold of your life? It would be in your best interests to contact the Riverside Family Law offices of Holstrom, Block & Parke immediately. Our attorneys understand the intricacies of divorce and the realities of your financial situation.

We will work with you to arrive at a reasonable legal settlement that is within your means and meet your needs while doing so. More than anything, we can help you come to terms with difficult decisions made with care and confidence during this stressful and traumatic time in your life.

About Dayn Holstrom

Dayn Holstrom is a hard working, compassionate problem solver who welcomes the opportunity to serve you in any way he can. His maximum availability to your questions and concerns begins with your free initial consultation. He is well-seasoned in all matters related to family law and a skilled negotiator and litigator.

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