WHAT IS SPOUSAL/PARTNER SUPPORT?
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Spousal Support (sometimes called alimony or maintenance) is simply financial support paid by a spouse/partner or ex-spouse/partner for the support of his or her spouse/partner or ex-spouse/partner. It is intended to pay the living expenses of the recipient spouse/partner. It is intended, as far as is practical, to maintain the same standard of living as a spouse/partner enjoyed during the marriage/partnership. Spousal support is separate and distinct from child support. Spousal support terminates upon the death of either party, the remarriage/partnership or cohabitation of the recipient or upon a fixed date ordered by the court. Either party can apply to the court for modification of an existing spousal/partner support order at any time during its existence.
You can also put Spousal Support “on the shelf” for Later : Reserving (sometimes called “retaining”) jurisdiction over the issue of spousal/partner support simply means that the court is asked not to make an actual dollar figure order but instead to place the issue of spousal/partner support “on the shelf” for either party to come back to court at a later time. The court will want to place a time limit on how long it will retain jurisdiction. The longer the marriage/partnership, the less restrictive that time limit will be. Just like with an actual dollar order for spousal/partner support, the court’s reserved jurisdiction on spousal/partner support will always cease upon the death of either party or the remarriage/partnership of the party for whom spousal/partner support is reserved. Reserving spousal/partner support is a good way to provide a safety net, particularly after a longer marriage/partnership or when one spouse/partner has health problems. Perhaps at the time of the divorce both parties are self supporting, but perhaps the financially weaker of the two has only just gone back into the work force after many years out of it. That party’s interests would not be served by a complete and final waiver of spousal/partner support. Reserving jurisdiction on spousal/partner support usually occurs in long term marriage/partnerships of 10 years or greater duration, although no judge will reject the proposal in any situation – if the parties agree.
Marriage of Long Duration: It is mandatory for the court to reserve jurisdiction indefinitely on the issue of spousal/partner support for either party in a marriage/partnership of long duration when requested by either party to do so. A marriage/partnership of long duration is generally one of 10+ years between date of marriage/partnership and date of separation, but a court can find a shorter marriage/partnership to be one of long duration for this purpose. This basically means that if you have a marriage/partnership of close to 10 years duration or longer, then unless you and your spouse/partner agree in writing (in the written agreement SmartTrackDivorce will prepare for you [see below on this interview page]) that there will be no spousal/partner support and no reserving jurisdiction on spousal/partner support, the court will reserve jurisdiction when requested to do so.
If you have a long marriage/partnership and you cannot provide the court with a written agreement to waive spousal/partner support for both of you, you can still request that neither of you is awarded spousal/partner support or has his or her spousal/partner support rights reserved, but Family Code 4336 is clear that the court does not have discretion. Such a request may result in rejection of your proposed judgment and/or setting a court appearance where you will have an opportunity to explain to the judge in open court. As in so many other areas of divorce, having a cooperative spouse/partner and a written agreement to prove that cooperation is good and usually results in getting what you want.
Spousal Support is taxable and tax deductible: Child support is not tax deductible or taxable. Spousal support is generally taxable to the recipient and tax deductible to the payer (though consult your tax adviser for your particular situation). The IRS is extremely aware of efforts to make child support look like spousal/partner support, and there are rules in place to prevent it. Definitely consult a tax preparer/accountant before proceeding if you have any questions on this issue.
Spousal support is not division of property or debt: Spousal support is also to be distinguished from sums paid to equalize the division of property. Let’s say that you and your spouse/partner agree that you will buy your spouse/partner’s 50% interest in your community property Toyota Celica, which has a net fair market value of $1000. To close the deal, you pay your spouse/partner $500 and your spouse/partner signs over the pink slip. The payment of that $500 is a tax-free payment made between spouse/partners or ex-spouse/partners in order to complete an agreed division of community property. It is not the tax deductible payment of spousal/partner support. Be careful and definitely consult a tax preparer/account before proceeding if there are any questions on this issue.
Welfare: If the intended recipient of spousal/partner support receives TANF (formerly AFDC) or Food Stamps for the support of any minor child of this marriage/partnership, do not proceed without discussing the spousal/partner support issue with your county agency welfare caseworker. When you signed up for welfare, you signed over to the county all right to your spousal/partner support from this marriage/partnership, as well as your child support rights. The county may or may not want to pursue spousal/partner support. Your case worker may tell you that you should “reserve jurisdiction” (see above) on the issue of spousal/partner support.
Mandatory Wage Assignment: Just as with child support, a Wage Assignment is now mandatory in all cases in which spousal/partner support is ordered. A Wage Assignment is a court order directed at the employer of the party ordered to pay the support. It directs that employer to commence, within 10 days of being served with the Wage Assignment, deducting an amount sufficient to meet the court ordered amount from the wages of the paying spouse/partner and pay that amount to the court ordered recipient of the court order. The employer is ordered to continue to so deduct and pay until the term of the support order is satisfied, until the paying spouse/partner no longer receives wages from that employer or until a further order of the court, whichever event occurs first.
But the Service of the Wage Assignment can be Postponed: However, the legislature not only recognized the need for such wage assignments but also that some couples would prefer not to invoke the wage assignment for reasons of amicability, practicality or perhaps even a desire to avoid employment embarrassment for the party ordered to pay the support. Accordingly, a partial “loophole” was built into the law. The Wage Assignment was still made mandatory, but its service upon the employer was not mandated if the parties agreed. The service of the Wage Assignment can be stayed or postponed, even indefinitely, providing that the paying party does not default (become late on any payment or portion of a payment) on the support order. If the service of the Wage Assignment is stayed and the party ordered to pay support becomes delinquent on any support payment, the other party can file simple paperwork at court, have the stay of service of the Wage Assignment lifted and then serve Wage Assignment on the employer of the party ordered to pay the support.A Wage Assignment can be served on most employers, even self-employeds. Military personnel and federal government workers have been immune from state court Wage Assignments, but that protection is in jeopardy. There are new potential law changes affecting this area.Again, you and your spouse/partner must agree on this issue. Service of Wage Assignments is not automatically bad. The Wage Assignment becomes just like any other deduction from income, and it’s taken care of without the support payer having to remember or do anything further.