Gather Evidence That Your Former Partner Doesnt Need Alimony
While this is not always the case, sometimes people are not truthful through the course of a struggling marriage or during divorce proceedings.
If you find that your partner has been stashing money in a secret savings account or has earned money in investments without you knowing, you may be able to prove that he or she has sufficient assets to not need alimony.
Since typical alimony payments and divorce alimony rules will vary from state to state and will depend upon your circumstances.
It is always best to consult with an alimony attorney if you have specific questions about the best states for alimony or if you are looking for answers to questions like, How do I avoid alimony?
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Retroactivity Of Alimony In California Upon Modification
Retroactivity of support in a modification proceedingtypically goes back to the date of filing of the request to modify orterminate. However, when the modification of alimony request is the result ofeither spouse’s unemployment, the court must make the retroactive modificationto the later of the date of service of the request for modification or the dateof unemployment, unless the court finds good cause not to make the orderretroactive and states on the record the reasons for that good cause.
This must be more than a conclusion but rather the factualreasons the court refused to make the order retroactive.
What Is The Marriage Period The Court Takes Into Consideration In A Long
The marital standard living and lifestyle can be difficult to determine in long-term marriages. For example, when spouses are married for over 20 years, what portion of that marriage should the court take into consideration when determining lifestyle? Is it the entire 20 year period? How would that work with a significant increase, decrease or wild fluctuations in the spouses’ lifestyle?
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Usually A New Spouses Income Is Not Considered
Under California law, for the most part, a new spouses income is not used in the calculation for child support. It may only be considered in cases where not to do so would cause extreme and severe hardship to the child involved. It is rare that the court will consider the new spouses income. Usually, the calculation is made strictly using the parents gross income.
There are other exceptions in which a court may consider a new spouses income. For example, if a parent voluntarily or intentionally quits work or reduces their income, a court may consider the new spouses income. Likewise, the court may do so if a parent remains either underemployed or unemployed and is reliant on the new spouses income.
When a court does look toward the new spouses income for inclusion in the calculation, the court must allow a hardship deduction based on the minimum living expenses for any stepchildren of the party who is subject to the child support order.
It is important to know that a new spouse may be required by the court to share their tax returns if the court is considering their income as part of the equation. Any questions that a person may have in this regard should be brought to a family law attorney experienced in child support orders and modifications.
Temporary Or Pendente Lite Spousal Support And Alimony
The family law judge in the probate court is authorized to order temporary, also called pendente lite, spousal support when a divorce action or separate support action is filed. . The parties must file the appropriate financial statements providing the court with the relevant financial information so a decision can be made based on facts as opposed to speculation.
Broadly, the court looks at the requesting partys need for temporary spousal support and the other partys ability to pay when considering motions for pendente lite alimony. The law and analysis is the same for orders for temporary spousal support and attorney fees motions for allowances to maintain and defend the action. Such motions may be brought at the very beginning of a divorce or separate support case filing.
The document filed should be fact-specific and is called a Motion for Allowance of Temporary Spousal Support, or some similar verbiage. The requesting party should be sure to provide an affidavit to the court setting forth all the expenses that he or she must pay during the pendency of the proceeding, including things like mortgage or rent, health insurance, homeowners insurance, necessities like food and groceries, water and telephone bills, and other monthly or weekly expenses.
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Is Spousal Support Taxable
Unlike child support, which is not taxable income to the recipient and is not deductible as income to the person obligated to pay child support, spousal support may be taxable income to the recipient and tax deductible to the person obligated to pay spousal support for state tax purposes. Spousal support is no longer tax deductible for federal tax purposes.
Remarriage And Maintenance Termination
Most divorced individuals know that remarriage or living with a significant other can be a basis to terminate maintenance, since the statute provides that the obligation to pay future maintenance is terminated upon the remarriage of the party receiving maintenance, or if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis. For more on this see: My Ex Lives With a Significant Other – Do I Still Owe Spousal Support?
If you have questions about how your new relationship or child play into your support obligations, contact the attorneys at McSwain Nagle Giese & Rapp, P.C. for a free consultation.
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Criteria For Determining Alimony
The criteria for determining the amount of alimony varies somewhat between states, but these are some of the most common factors that courts will consider:
- One partys need for alimony and the others ability to pay
- The standard of living established during the marriage
- Earning capacities of each party and available sources of income
- Age, health and emotional condition of each party
- Duration of the marriage
- The time each party would require to prepare for and find appropriate employment if they werent employed during the marriage
- Contributions to the marriage, including the value of aiding a spouses career-building and the value of services rendered in homemaking, childcare and child education
- Ongoing responsibilities for children of the marriage
Courts have some discretion in how much to value to place on each factor for determining alimony.
What California Alimony Topics Do We Cover
In this comprehensive page, we will discuss:
How California alimony is calculatedon a temporary and long-term basis?
How California alimony laws allow upward or downward modification?
- How alimony in California is terminated in long-term and short-term marriages?
We will also give you tips and insight on how we have seen California alimony laws applied in certain kinds of divorce and post judgment cases.
Alimony is synonymous with the word “spousal support”, which is the word used in the California Family Code. We will also use spousal support or just “support” from time to time in this page.
Nothing in this page should be interpreted as legal advice nor is it intended to address your specific factual situation. Advice about California alimony laws and procedure should only come from direct communication with an attorney and after the attorney has analyzed your facts and issues.
If you have a Southern California family law matter and you need an affordable, initial strategy session with us to answer your spousal support questions, please don’t hesitate to contact our California divorce attorneys.
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How Does The Spouse Ordered To Pay Temporary Alimony Pay It
The court usually orders temporary alimony payments directly from one spouse to the other.
The court order will typically state it shall be paid one-half on the first and one-half on the 15th of each month. The duration of the alimony is generally until there is a final judgment or any other date that the court sets. Most of the time, temporary alimony is an open-ended order until death of either party, remarriage of the payee or further order of the court. That “further order of the court” takes place at the trial or when the spouses resolve their divorce and agree on a final alimony amount, if any.
What about situations where the paying spouse is self-employed and the court has not determined the final income numbers for alimony purposes?
In cases where the paying spouse is self-employed, it is common for the court to set a temporary alimony amount that is without prejudice to either spouse and subject to retroactive modification later on as the Court gathers more information.
However, there are two cases in our appellate courts called Marriage of Gruen and Marriage of Freitas that have complicated such orders.
These two cases are a good example of how California alimony laws:
- Evolve and can change
- Why no article or guide will apply to your specific situation, and
- Why the one-on-one advice of an experienced family law attorney is important.
Can The Florida Courts Include My New Spouses Income When Setting Child Support
In general, a new spouses income has no bearing on a child support obligation. It simply is not an input into a child support calculation formula. If a spouse gets remarried that pays child support, which is very common, the new spouses income will not be considered. There is a slender exception to that. To the extent that the spouse that got married and pays child support no longer finds it necessary to be fully employed because of the marriage, they can have their historic income imputed to them when you determine child support using the guidelines. Then again, that has no direct bearing on the new spouses income at all.
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Alimony Lawyers In Boston New Bedford & Hingham Ma
Alimony, also known as Spousal Support, is an important and highly complex area of family law. Spousal support is often referred to as alimony, and these terms mean the same thing. Many courts use the term spousal support, but Massachusetts still refers to it as alimony. In the context of divorce and separate support actions, alimony means that one spouse pays money to the other spouse to assist that spouse with his or her expenses. Generally, spousal support may be ordered in two kinds of cases, divorce proceedings and separate support proceedings.
There are two times when the trial court may order spousal support, during the pendency of a case or at the end of a case. The trial court will analyze and order spousal support differently during the pendency of a case than it will at the conclusion of a case.
When a party files a motion seeking the court order spousal support during the pendency of a case, this is called temporary spousal support, or pendente lite spousal support. Either party may file a request for spousal support as soon as a divorce petition is filed by either party. The court will base an award of temporary spousal support on the supported partys need for support and the supporting partys ability to pay. Typically these temporary spousal support motions are accompanied by a declaration, or affidavit, setting forth the grounds why a pendente lite spousal support award should be given or denied.
What To Do When Court
If a judge has ordered alimony, it must be paid, and the payer can be held accountable for failing to pay.
If your spouse has been ordered to pay alimony but is refusing to do so, you can file a motion in court, and the spouse could be held in contempt. This can result in fines and penalties.
Your spouse could also be required to make up for missed alimony payments by paying retroactively what was due in the past but not paid.
After you file a motion notifying the court that your spouse has failed to pay alimony, the court will schedule a hearing during which a judge will speak to all parties to determine why one spouse is refusing to pay alimony and to decide upon the best course of action.
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Frequently Asked Questions About Spousal Support In Temecula Ca
Spousal support is one of the more bitterly contested issues in family law cases, along with child custody matters. People do not like to pay spousal support to their soon to be ex-spouse. Spousal support may be litigated during a divorce, legal separation or even a nullity case, at the of the divorce or legal separation, or anytime after the conclusion of a divorce or legal separation case so long as the court has retained the power to order spousal support. For more information about spousal support, .
Can the court order spousal support or alimony during an annulment/nullity case?
Yes. The family court has the distinct authority to grant a request for temporary alimony during the pendency of a nullity case. The reason is because it is not certain that the nullity will be granted and the court may ultimately only grant a divorce or legal separation.
Remarriage & Child Support In Ca
Since the childs biological parents are the only parties responsible for supporting the child, remarriage will not directly impact child support in California. Judges are prohibited from considering a new spouses income, unless both of the childs biological parents do not earn enough money to properly provide for the childs basic needs or other extraordinary circumstances.
If a noncustodial parent remarries and has more children, he/she cannot use the new expenses associated with starting a new family as a reason to lower child support payments. Yet, the court will consider other child support and even spousal support obligations when determining an initial amount for child support payments. But when it comes to modification, the noncustodial parent must prove that there has been a significant change in one or both parents financial standing.
If you are interested in modifying or terminating a child support or spousal support order in Irvine or Orange County, contact The Neshanian Law Firm, Inc today at 577-7935 for a free 15-minute phone consultation. Our legal team has more than two decades of combined family law experience.
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What Are The Limits For Ssdi Versus Ssi
People applying for SSDI cannot earn over $1,350 per month from work in 2022. That means alimony will not affect their claim since only earnings from work count. However, the situation is different for people with SSI for disability, and the calculation is much more complicated.
Income is still a determining factor for SSI benefits, but some income is exempt. And, the SSA says it includes any item an individual receives in cash or in-kind that can be used to meet his or her need for food or shelter. In other words, yes alimony could affect SSI benefits. In the case of our reader, an alimony payment of $2,400 monthly would definitely put his ex-wife over the acceptable SSI limits.
The maximum monthly benefit available for SSI from federal funds in 2022 is $841 a month for an individual. The number jumps to $1,261 for a couple who are both eligible for the program. The SSA will subtract what it calls countable income from the benefit. If your countable income is greater than $841/$1,261, then you cant receive SSI.
Impact Of Cohabitation On Alimony
Under California law, there is a rebuttable presumption that alimony can be reduced, and possibly terminated when the supported spouse is cohabiting with someone else. The rebuttable presumption means that the court will presume that a reduction or termination of alimony is appropriate unless the supported spouse can prove a continuing need for alimony payments despite living with someone else.
As with remarriage, you and your spouse can agree in your divorce settlement agreement to continue spousal support if the supported spouse remarries. If you don’t have a written agreement, and the supported spouse will not agree to lower or end alimony, you can file a motion asking the court to modify support. The court won’t directly consider the income of the person with whom the supported spouse is living when deciding whether to lower or end alimony, only the supported spouse’s new financial circumstances.
Cohabitation is more than a roommate relationshipit usually requires a personal, romantic relationship. However, if the supported spouse is living in a roommate situation, the court may still find the need for support has decreased and may modify alimony.
If you have additional questions about spousal support and remarriage, consult with a California family law attorney.
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Alimony And Child Support: What Judges Consider About Your Income
If youll be paying child and/or spousal support as part of your divorce agreement, it may help to know what types of income courts look at as they determine your level of obligation. While laws vary depending on your state, and judges have some leeway in making these determinations, here are some general guidelines to help you set your expectations.
Typically, courts consider any type of earned income or compensationthat is, income resulting from employment or other effortsalong with recurring passive income, such as dividends on your investments, in establishing the amount of support you will be responsible to pay. They may take into account any of the following types of earned income:
- Perks related to your employment
- Corporate contributions to your retirement account
- Performance or signing bonuses
- Deferred compensation
- Carried interest
Other factors weigh in to child and spousal support as well. While the court first looks at your most recently filed federal income tax return, they are entitled to delve deeper, into money you receive that isnt reported, or means that exist beyond your tax return. For example, if a family has children in private school, a house in the Hamptons and a house in Manhattan, but the annual tax return reflects income of $100,000, the court is going to explore further to see what other means exist and how they can ensure the children are able to continue to lead the lifestyle they are accustomed to.
Reaching a More Favorable Agreement