How does Spousal Support Work?

#1

From someone who had difficulty directly posting to the forum:

I’m really trying to understand how spousal support is determined and if it’s worth going to court over.
Long term marriage (19 years). Separated 3 years. No temp order yet.
Are 4320 factors really considered or is it really just disso/ B key for permanent order? His attorney’s disso gives a significantly lower number than mine does. Who’s right? Is there a “right”?
Is it based on the most recent past year’s based on Gross, Net or Base pay plus % of OT and Bonuses??? Average of 5 years prior to separation or prior 5 years including the 3 we have been separated? He grosses $209K and nets $135K. His offer is $3500/mo. Do contributions such as deferred comp or pension get added back? If tax withholdings are more than required does that get adjusted? I’ve been a stay at home mom for the entire marriage. Children are over 18 now and I’m seeking employment.

#2

For the basics of spousal support, please refer to this article on our website: https://cristinlowelaw.com/spousal-support-basics-what-you-need-to-know/

My answers assume you’re familiar with the basics outlined in the article.

Temporary Spousal Support

For a temporary spousal support order calculation, since it’s based on a formula, there should be a right and a wrong answer. Think of temporary support calculations like TurboTax. If you enter your income incorrectly into the program, the calculations for your tax obligations will likewise be incorrect. The data drives the results. Therefore, the answer to “who’s right” depends on who entered in the data correctly into the support program. You will need to review every entry into the program and compare and contrast the two support calculations to determine who is right and who is wrong. It’s likely that both of you had some errors in your figures.

For detailed information on the various inputs for a support program, you can review this article on our website (while it’s labeled as child support, for TEMPORARY spousal support, the same program is used, so you will find value in understanding how the program works): https://cristinlowelaw.com/california-child-support-in-ten-steps/

The program requires you to enter GROSS (pre-tax) income - the program takes out the taxes as part of its calculations. For temporary spousal support, it is usually based on current income.

For bonus/overtime support, review this article:

https://cristinlowelaw.com/how-is-bonus-income-treated-in-spousal-support-situations/

Permanent Spousal Support

Permanent spousal support is NOT formula driven and therefore, support program calculators can only be used as tools for negotiation purposes. This is where an analysis of the marital standard of living applies, which is not a clear cut standard. For example, a venture capitalist will have wide fluctuations in income, ranging from virtually nothing in one year to potentially millions in another year. For that situation, it is unrealistic to base marital standard of living on one year, as opposed to looking at many years of income. For some firefighters in California, looking at the last 2 years of income would create a false/artificially high income, as it is unlikely they could continue to replicate that level of overtime in future years as a general standard. In short, it depends on the entire situation.

Going to Court

The key factor to remember in dealing with the issue of spousal support in court is that temporary spousal support is pretty cut and dry, unlike permanent spousal support. You should be able to get a fairly clear idea of the correct amount, and if no agreement can be reached along those lines, then going to Court will get you the appropriate guideline amount. Many reasonable people can figure out a way to get to a temporary support number that is accurate. That is NOT the same as reaching an agreement on permanent spousal support, which is often times lower than temporary spousal support. In your particular situation, where you’ve been separated for a substantial amount of time, the attorney may be trying to get you to a permanent support agreement.

#3

What happens to spousal support and child support when the income of one party (wife) is driven solely by investments from a very large liquid asset pool (8 figures) that was gifted solely to that person during our (long term) marriage? Income is driven by stock sales, dividends, etc., and can easily be manipulated at least in the short term. I am sure that she will have some of the best lawyers money can buy–she is very smart and more than willing to lie to get her way. The last 2 tax years have generated taxable income from this separate property that is 2-3 times my salaried income. As divorce is only being threatened at this point (by her as one of many forms of abuse and control), what do I need to do now other than extensive documentation when possible to protect our children (their proper upbringing comes first!) and by extension myself should divorce occur? What legal shenanigans might be occurring on her side that I need to be aware of?

#4

Income in the form of dividends and other investment income sources is absolutely considered income available for support, although you’ve correctly identified the difficulty in accurately capturing the returns. Extensive documentation, including details regarding the income earned during marriage, tax returns, etc. is very important. That said, given the complexity of the situation, you would likely benefit from a forensic accountant and an attorney. This does not sound like a case where representing yourself is a good idea.

#7

Hello @Cristin_Lowe we are doing a DIY divorce following your videos with Alameda Family Court! I am the petitioner, filled for divorce and have my case number etc. I am about to now file up the new FL-115 and FL-117 and serve him the paper works. Will I need to file FL-330? I am currently not working, and have 2 children from the person I am getting divorce from, and we still live together because of financial difficulties. We are married 12.5 years and together for 15 years. When can I file for Child support and Alimony? What are those form numbers?
Thank you so much!

#8

Just to be clear, you must serve your spouse BEFORE filing FL-115 and FL-117 (he in fact has to sign FL-117 before you can file it). If you do that part correctly, you will not need FL-330 for service of FL-100, FL-105, and FL-110 (though you may need it for other documents you serve).

In general, you can ask for support anytime after the divorce is filed; however, since you are living together, I assume your spouse is paying the rent/mortgage and other household expenses. When that is the situation, many judges will not order support, since you’re receiving a form of support already. If there is physical separation, as well as an income disparity, it’s highly likely that a judge would order support. You would need to file FL-300 outlining your specific requests, along with FL-150.

#9

My divorce was finalized just over 4 years ago. My ex-wife’s attorney has just requested that I send them my tax returns for 2017, 2018 and 2019. Am I legally required to provide all of these returns?

#10

My divorce was finalized just over 4 years ago. I do make more money now. She is already receiving a lot of money from me and can live with ease and not have to work. Is she able to get an increase in alimony in California just because I make more money?

#11

You’ll have to a) look at your Judgment to see if a tax return exchange was ordered; and b) if the attorney served you with a formal request for tax returns using FL-396. That should initially tell you whether you are “legally required” to provide all the returns right now.

That said, at best, you’re simply delaying the timeframe in which you would need to provide the returns if you are not currently “legally required” to provide them right now. It is not difficult to change the situation so that you are required to produce them.

#12

I can’t answer that question without a lot more context and background, including reviewing your Judgment. You’ll want to review your Judgment to see the grounds upon which she can seek a modification of spousal support, as well as whether or not there is language in your judgment explaining how the support was calculated and if the support meets the marital standard of living.

#13

I pay a fixed monthly alimony to my ex which was determined based on my base salary several years ago. Additionally I pay 30% of my annual bonus which is discretionary. I was terminated mid year and negotiated a lump sum severance under a separation and release agreement. My ex is asking for a copy of my separation agreement and details of the payout because she believes either all or part of the lump sum should be considered a bonus, and therefore entitle her to 30%. I have continued to pay my ex the fixed monthly alimony even though I’m not working, and I don’t believe my ex is entitled to any of the severance. Do you agree and how do you suggest I handle with my ex to avoid her litigating? Thank you.