Spousal support in family law proceedings

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During the pendency of a proceeding for dissolution of marriage or legal separation and at the time of final judgment, the court may order a party to pay any amount necessary for the support of the other party. This is known as spousal support (formerly alimony) and may be classified as either temporary or permanent spousal support. Temporary spousal support is ordered during the pendency of the proceeding prior to a final judgment of dissolution of marriage or legal separation. Its purpose is to preserve the living standards of the parties as close as possible to the status quo. See Family Code Section 3600. It is normally based upon temporary support guidelines utilized by the courts which primarily consider the relative incomes of the parties and which promote consistency in temporary support orders. The use of temporary guidelines is not mandatory, however, and the court has wide discretion in determining the proper amount of temporary spousal support. Temporary spousal support can be ordered based upon the agreement of the parties or by the court after a hearing requested by the party seeking support.

Permanent spousal support is ordered at the time of judgment, either after a trial or a settlement agreement entered into between the parties. Although it is often referred to as “permanent,” it is always subject to modification (unless the parties agree that it is non modifiable) and may, in fact, have a specified termination date or be ordered to automatically step down. Regardless of the amount and duration of the actual spousal support payment order, if the marriage is considered to be “long term” (10 years or longer from date of marriage to date of separation), the court must, at the very least, “indefinitely” retain jurisdiction over spousal support, so as to have the power to make future orders establishing or modifying spousal support if the circumstances warrant. See Family Code Section 4336. When determining the amount of permanent spousal support, the court cannot rely on temporary support guidelines. The court must consider all of the factors contained in Family Code Section 4320, including the standard of living of the parties, age and health of the parties, incomes of the parties, needs of the parties, ability to pay of the supporting spouse, the marketable skills of the supported spouse, and many other considerations.

If a supported spouse is “cohabiting with a person of the opposite sex” after an order for spousal support is made, this creates a “rebuttable presumption” of decreased need for spousal support. However, it does not automatically terminate spousal support. The party seeking to terminate or reduce the support must file a request for hearing with the court, which will then determine whether support should be terminated or reduced. See Family Code Section 4323.

Is a new spouse or nonmarital partner’s income considered in child and spousal support?

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Often, clients want to know whether the income of their new or subsequent spouse or nonmarital partner is considered by the courts in determining the amount of child support or spousal support that the client will have to pay. The general answer is that it is not considered. However, there are some exceptions, and the rules are different depending on whether the court is determining child support or spousal support.

Where the issue is child support, Family Code Section 4057.5 (a)(1) says that the income of the obligor (paying) parent’s subsequent spouse or nonmarital partner shall not be considered when determining or modifying child support, except in an extraordinary case where excluding that income would lead to extreme and severe hardship to any child subject to the child support award, in which case the court shall also consider whether including that income would lead to extreme and severe hardship to any child supported by the obligor or by the obligor’s subsequent spouse or nonmarital partner.

The code section goes on to state that such “extraordinary case” where the court may consider new spouse or nonmarital partner income includes a case where the parent voluntarily or intentionally quits work or reduces income, or who intentionally remains unemployed or underemployed and relies on a subsequent spouse’s income. However, in the absence of such an extraordinary case, the court will not consider the income of a new spouse or nonmarital partner.

If the court did determine that there was an “extraordinary case” such that new spouse income should be considered, the Family Code section limits the discovery of that income to W2 and 1099 tax forms except where the court determines that application would be “unjust or inappropriate.”

Where the issue is spousal support, Family Code Section 4323 (b) clearly prohibits the consideration of the paying spouse’s new spouse or nonmarital partner income. The code section specifically provides that the income of a supporting spouse’s subsequent spouse or nonmarital partner shall not be considered when determining or modifying spousal support.

Division of retirement pensions in family law/divorce cases.

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Many people are surprised to discover that retirement pensions acquired during a marriage are subject to division as community property. This means that there is a community interest in all pensions and pension rights acquired from date of marriage to date of separation. The percentage of the pension deemed to be community is determined by dividing the number of months that the employee spouse was in the pension during the marriage (prior to separation) and dividing that figure by the total number of months that the employee spouse was in the pension, prior to marriage, during marriage and after separation. The result is the community property percentage of the pension. The non-employee spouse is awarded one-half of that community portion. The non-employee spouse receives his or her share of the pension by an order signed by the court in addition to the divorce judgment, known as a Qualified Domestic Relations Order (QDRO).

QDROs must be carefully drafted to comply with all pension and tax law to and assure both spouses of an equal division of the community portion of the pension including any survivor benefits.