One of the biggest issues in any divorce is that of spousal support. Whether you are looking to secure large or small payments, the assistance of a conscientious and experienced Carlsbad alimony attorney may be the difference between getting the terms you want and losing out on the money you deserve.
At Fischer & Van Thiel, LLP, we are dedicated to helping our clients secure the spouse payment agreements they need. We have a wealth of experience in the field, and have developed a reputation for courteous, discrete service and vigorous representation. To discuss your case with us in detail and to learn about whether our Carlsbad alimony lawyers can help you, please contact us today by calling 760-722-7669.
Carlsbad Alimony and Spousal Support Issues
Our diligent Carlsbad alimony attorneys have a wealth of experience handling both sides of alimony debates. We may be able to help you with the following support-related matters:
- Modifying Payment
Whatever your particular concerns are, we may be able to work with you to obtain the agreements that you need. Our compassionate attorneys are dedicated to providing you with the intelligent representation you deserve, whatever your particular situation is.
For more information on alimony or spousal support and how it is calculated, or to schedule a free initial consultation with an experienced Carlsbad divorce law attorney, please contact us by filling out our online intake form or calling us at 760-722-7669.
Q & A with Fischer & Van Thiel
What is spousal support? How is it determined?
Alimony, or â€œspousal support,â€ is payment from one spouse (â€œpayor spouseâ€) to another (â€œsupported spouseâ€ or â€œpayee spouseâ€) after they separate with plans to divorce. There are two types of alimony:
- Temporary alimony is a payment from the higher earning spouse to the one who earns less. Itâ€™s â€œtemporaryâ€ because itâ€™s meant to provide financial support during the divorce proceedings.
- Permanent alimony, or â€œlong-term support,â€ is regular support payments from the payor spouse to the supported spouse. Itâ€™s supposed to place the supported spouse at or near the â€œmarital standard of livingâ€ (the standard of living established during the marriage) after the divorce.
If the parties canâ€™t come to an agreement on the amount to be paid, a judge will decide the amount of temporary alimony based on the spousesâ€™ incomes, health insurance deductions and other earnings-related considerations.
Permanent alimony is based on a number of considerations. A judge will look at the whether a spouseâ€™s earning capacity is sufficient to maintain his/her marital standard of living, considering a number of factors:
- The marketable skills of the supported spouse and the job market for those skills.
- The time and expense needed by the supported spouse to gain an appropriate education or training to develop those skills and the need for retraining or education to acquire more marketable skills or employment.
- The degree to which the supported spouseâ€™s earning capacity is impacted by periods of unemployment during the marriage which permitted the supported spouse to devote time to domestic duties.
- How much the supported spouse contributed to the paying spouseâ€™s ability to get an education, training, career, or license.
- The paying spouseâ€™s ability to afford alimony (considering the paying spouseâ€™s earning capacity, earned and unearned income, assets and standard of living).
- Both spousesâ€™ financial needs based on the marital standard of living.
- Their debts and assets, including separate property.
- The length of the marriage.
- The supported spouseâ€™s ability to work outside the home while caring for any dependent.
- The age and health of the spouses.
If you are considering a divorce and have questions or concerns about paying or receiving spousal support, contact our office atÂ 760-722-7669 so we can talk about your situation and how the law impacts you.
How long does spousal support last?
It depends on the circumstances and the agreement between the parties, if there is one. There are two types of spousal support. â€œTemporaryâ€ support is paid during the divorce process and ends with a final divorce order. â€œPermanentâ€ support may or may not be truly permanent and depends on a number of factors.
If there is a binding agreement between the parties that the payments will last a lifetime (whether or not there is a remarriage or changed circumstances) the alimony really is permanent. The court order may spell out a specific time limit for payments.
Generally spousal support is considered “rehabilitative” and is expected to remain in effect until the supported spouse is expected to be able to support a lifestyle he or she enjoyed during the marriage. This period would include any training, education, job search and career advancement until the person becomes self-supporting.
If the marriage was a lengthy one, and the supported spouse was out of the workforce for many years, or the supported spouse has serious health problems or is elderly, there may be lifetime spousal support awarded because thereâ€™s no realistic expectation of joining the workforce.
If the supported spouse,
- Remarries, unless there is a written agreement otherwise, the obligation to pay spousal support ends.
- Cohabitates with a member of the opposite sex in a committed, romantic relationship, or advances sufficiently professionally with a corresponding increase in income and resources, a judge may issue an order ending (or reducing) the spousal support.
If you receive or pay spousal support and have questions about how or when those payments might cease, contact our office through our evaluation form so we can start to discuss your case and how the law applies to you.
If my ex or I remarry can this affect spousal support?
The obligation to pay alimony automatically ends when the supported spouse remarries, unless there is an agreement between the parties specifically stating the payments will continue or if alimony was paid in a lump sum or by transfer of property.
If a supported spouse is living with someone else or has an increased income, the paying spouse could ask for an end to alimony or a reduction and if that doesnâ€™t work, a court order could be sought. A motion seeking that order would need to explain how the circumstances changed and why a decrease or termination of alimony is justified.
- There is a rebuttable presumption in California law that alimony can be lowered and potentially ended if the supported spouse is proven to be cohabiting with a person of the opposite sex.
- This would have to be more than a roommate relationship involved, normally requiring a personal romantic relationship.
- The allegation the supported spouse is cohabitating with someone of the opposite sex may be disputed and would have to be shown by the moving party.
- The court will presume alimony should be reduced or terminated with a cohabitation unless the supported spouse can prove a continuing need for alimony payments after he or she began living with someone of the opposite sex.
- If itâ€™s just a roommate situation, not a cohabitation, the court could still decide the need for support has decreased and alimony could still be modified.
- The court wonâ€™t consider the income of the person with whom the supported spouse is living when deciding whether to lower or end alimony, only the supported spouseâ€™s new financial circumstances.
If you are paying or receiving spousal support and remarriage or cohabitation has become an issue, contact our office through our evaluation form so we can start to discuss the facts of the situation and how the law could impact your spousal support payments.
Can spousal support affect my taxes?
Spousal support is tax deductible for the party who pays it and is taxable income for the party who receives it.
The federal IRS tax code spells out eight requirements for payments to be considered alimony/spousal support. If all of them are met, payments will be taxable to the person receiving them and can be a deduction from gross income for the person paying them.
- â€œthe payment is made under a written divorce or separation agreementâ€
- â€œfor payments made after the couple is no longer married, they can no longer live in the same householdâ€
- â€œthe payments are in cash or cash equivalentsâ€
- â€œ the payments are made to (or on behalf of) a spouse or former spouseâ€
- â€œ the agreement does not state that the payment is not alimony for tax purposesâ€
- â€œthe parties do not file a joint tax returnâ€
- â€œthe obligation to make the nondelinquent payments does not survive the receiving spouseâ€ (the payments must stop upon the death of the spouse receiving the support)
- â€œthe payments cannot be called child support in the agreement or be deemed child supportâ€
Certain payments such as mortgage, home insurance, property tax, medical expenses and rent can be structured as spousal support and qualify as a deduction for the payer and as taxable income to the recipient. Certain life insurance payments can also be considered spousal support if the ex-spouse receiving the payments owns the life insurance policy.