Spousal Support
In addition to Child Support, a California court may order that one spouse pay support to the other spouse, both during the dissolution proceeding in order to maintain the status quo, and after the final judgment of dissolution has been entered. The duration of court ordered spousal support will depend upon the length of the marriage. Generally, if the parties have been married for less than ten (10) years, support will be ordered for one-half (1/2) the length of the marriage. If the parties have been married for more than ten (10) years, the court has jurisdiction to order support until the payee spouse either re-marries or dies.
Spousal support is governed by Family Code section 4320. Thus, when ordering permanent support, a judge will look at the factors set forth in that section. These include, the standard of living during marriage, the income of both parties, the length of the marriage, the age of the parties, their health, their earning capacity, education, job skills, their assets and liabilities, and the ability of the non-earner spouse to obtain the skills necessary to become self-sufficient.
As in situations involving child support, the calculation of the amount of spousal support is determined by the dissomaster, which is a computer program used by attorneys to calculate support payments based on California guidelines. However, unlike child support, the parties may agree amongst themselves to waive spousal support.
Under prior law, the internal revenue code provided that spousal support payments were taxable as ordinary income of the payee spouse, and were deductible by the payer spouse. However, on December 22, 2018, a number of changes were made to the tax code. These changes included the elimination of the tax deduction for spousal support payments. Under the new tax law, in any divorce finalized after December 31, 2018, the higher income earner will no longer be able to take a deduction for support paid to his or her ex-spouse. This new rule will not affect parties who were ordered to pay spousal support prior to December 31, 2018. Those parties may be grandfathered in under the old law and continue to be allowed to take the deduction.
Support payments made in the absence of court orders are deemed to be gifts and are not reimbursable. Thus in order to maintain continuity and certainly, it is important for the parties to have enforceable court orders in place.