Spousal Support FAQs
Why does the law provide for spousal support?
The California Family Code recognizes that, in many marriages, one spouse has a greater earning capacity than the other spouse. In more traditional families, the wife would customarily remain out of the workforce to raise the children and maintain the family home. In some marriages, however, the wives have had higher incomes than their husbands at the time of the divorce. The law addresses this disparity by allowing the courts to make one spouse pay spousal support to the other spouse.
Where is the law that provides for spousal support?
There are two sources for the law that governs spousal support. Section 3, Parts 1 through 5 of the California Family Code contains the basic provisions regarding spousal support. The Family Code sections that deal with spousal support can be found at http://codes.lp.findlaw.com/cacode/FAM/1/d9/3.
In addition, the California State Supreme Court and the seven district courts of appeal render decisions that interpret those Family Code sections. Over the years, there have been dozens of reported decisions that have had a profound impact on how the dictates of the Family Code are to be applied. A searchable database of those decisions can be found at http://www.courts.ca.gov/opinions.htm.
How is the amount of spousal support determined when the divorce case is first filed?
It can take many months for a dissolution of marriage case to wind its way to court. During that time a judge can make a temporary order for spousal support that will be in effect until the case is completed. In making such a determination most courts apply the Santa Clara County spousal support guideline. This guideline is based on a simple formula:
40% of the high earner’s income – 50% of the low earner’s income = Temporary spousal support
For example: If a husband’s net monthly income is $8,000 and the wife’s net monthly income is $2,000, guideline spousal support would be calculated as follows:
||40% of husband’s net monthly income
||50% of wife’s net monthly income
||Temporary spousal support
How is the amount of spousal support calculated at the end of the case?
At the end of the case, when long-term spousal support is being decided, a court is required to consider more than just the guideline. Instead, the Family Code requires courts to take a more holistic approach, taking into consideration a long list of factors, some of which are the following:
● The marital standard of living.
● The current incomes of each spouse.
● The extent to which the earning ability of the spouse requesting support was impaired because he/she stayed home to care for the children.
● The extent to which the spouse requesting spousal support helped the other spouse attain a college degree, professional license or career.
● The needs, obligations and assets of each spouse.
● How long the spouses lived together as husband and wife.
● The spouses’ respective marketable skills.
● The ability of the spouse to work without adversely affecting the children.
● The extent to which the spouse requesting spousal support was the victim of domestic violence perpetrated by the other spouse.
How does our marital standard of living affect how much spousal support I am to receive?
The marital standard of living is a general reference to the standard of living that the couple enjoyed during the marriage. It is not a precise measurement of the pre-separation income and expenses of the couple. Instead, the marital standard refers to the general station in life enjoyed by the parties during their marriage.
Various factors are considered in determining the marital standard, including:
● The household income
● Expenditures by the family
● The family’s general station in life
● Lifestyle factors, such as vacations, dining out, department store purchases, private schooling, type of neighborhood where the family resided
How long will I have to pay spousal support?
Besides the amount of spousal support, the duration of the spousal support obligation has to be determined, either in the spouse’s marital agreement or by the judge at trial.
I have a career and a substantial income, but my husband is unemployed. Do I have to pay spousal support to him?
In determining spousal support, the gender of the requesting spouse is not to be considered. This means that a wife can be required to pay spousal support to her ex-husband.
If I am paying child support will I have to pay less spousal support?
In creating the Statewide Uniform Guideline for Child Support, the California Legislature made it clear that the most significant obligation owed by parents is the support of their children. Thus, child support has a priority over spousal support. In fact, in many wage-earning families, once child support is ordered, there is very little disposable income available to the higher earning spouse to pay spousal support to the lower income spouse.
I am receiving child support for our children as well as spousal support. Can I get my spousal support increased when the child support ends?
The California Family Code provides that the termination of a child support order can be the basis for an increase in the spousal support order. Whether the court will actually increase your spousal support depends upon the facts in your case.
I just lost my job. What happens if I stop paying spousal support?
All spousal support orders continue until they are either terminated by operation of law or modified by a subsequent court order. This means that your obligation to pay spousal support is not automatically reduced or ended if you lose your job. You have to immediately go to your local courthouse and file an Order to Show Cause to reduce or terminate your spousal support payments. If you fail to do so, you will incur a very substantial spousal support arrearage, as well as statutory interest at 10% per annum on your unpaid balance.
I have fallen on hard times and cannot pay the court-ordered spousal support to my ex-wife. She has told me that I don’t have to pay her. Can I rely on this and stop my payments?
You cannot rely on your ex-wife’s verbal promise not to insist on your payments of spousal support. As stated in the prior answer, an order for spousal support continues until it terminates by operation of law or is modified by another court order. Your ex-wife’s statement that she does not expect you to pay spousal support is not legally binding on her and she can collect back spousal support in the future. You need to modify the current spousal support order by a written agreement filed with the court or an order by the court following a hearing.
I think my ex-wife can earn more than she is currently making. Can I get my spousal support reduced?
If you can prove to the judge that your ex-wife is capable of earning more money, your spousal support payments can be reduced. The best way that this can be done is by having your ex-wife evaluated by a vocational expert, which is allowed under the California Family Code. In such an evaluation, the expert interviews your ex-wife and administers standard tests to determine her educational level, workplace skills and interests. Once this data has been obtained, the expert then surveys the local economy to determine if there are positions that your ex-wife could handle and from which she could earn more income.
Will my ex-husband’s annual bonus affect how much spousal support he is required to pay to me?
Spousal support payments are generally limited by the marital standard of living. If your husband’s total income, including the bonus, is roughly the same as it was before you separated, his bonus will be considered. On the other hand, if the bonus actually increases his income over what he earned while you were married, the judge will probably not factor it in the spousal support calculation.
Can I stay on my husband’s group medical insurance plan after we are divorced?
Once your marriage has ended you are no longer a “spouse” under your husband’s plan. However, the federal Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) requires employer-provided group health plans of at least 20 employees to enable ex-spouses to continue their existing coverage. However, there are certain aspects of the COBRA law that you should know:
● You will have to pay the premium.
● You have to apply for COBRA benefits not more than sixty (60) days after the official termination of your marriage.
● For the first 36 months, the plan can charge you not more than what it charges the employee, plus a 2% service charge. After the initial 36-month period expires, you still have the right to maintain your coverage, but there is no limit on what the insurance company can charge you for your coverage.
My husband left me and our children for another woman. Will that be considered in determining how much spousal support he is to pay me?
California’s divorce law mandates that the fault of either spouse cannot be considered in any aspect of the case. So, your entitlement to spousal support is not any greater because your husband left you for another woman. The same factors that are discussed above apply.
My ex-wife is living with another man. Can I get my spousal support stopped?
The California Family Code provides that, if a spouse who is receiving spousal support starts to cohabit with a person of the opposite sex, there arises a “rebuttable presumption” that the receiving spouse’s need for spousal support has been reduced. This means that, if you file a request for modification with your local Superior Court, once the judge concludes that your ex-wife is living with another man, the burden shifts to her to prove that she still needs your spousal support payments. However, you need to understand that spousal support does not automatically end just because the receiving spouse is cohabiting. If the judge finds that your ex-wife is still not financially self-supporting, you will still have to pay some spousal support, even though it might be reduced.
Can I get out of paying spousal support if I file bankruptcy?
Like child support, spousal support payments cannot be discharged in bankruptcy.
My ex-husband has stopped paying my spousal support, but I can’t afford an attorney. What can I do?
You should contact the Department of Child Support Services (DCSS), which can be found at http://www.childsup.ca.gov/default.aspx. This is a state agency that is primarily concerned with the collection of child support, but they are also charged with the responsibility of enforcing spousal support orders. There is no charge for their services. In fact, the DCSS has the power to do things that a private attorney cannot do. For example, through the DCSS you can have your ex-husband’s income tax refund intercepted and applied to his delinquent child support payments. If you do not know where the father is living, DCSS can access the Federal Parent Locating System, which can locate a parent using his/her social security number.
You can also go to your local superior court and speak with the Family Law Facilitator. This is an attorney who is employed by the court to assist people who are representing themselves in court. The Family Law Facilitator can give you information about the steps that you can take without an attorney to collect your spousal support.