San Diego Divorce Lawyer Blog
Whether you are a dependent spouse in San Diego need of spousal support during or after a divorce or a primary breadwinner facing an estranged spouse’s financial demands, what you don’t know about spousal support can be costly.
Myth #1: Spousal Support is Punishment for Wrongdoing
While some alimony in the past when divorce in San Diego was “fault” and not “no fault” was often punitive in nature after episodes of infidelity, modern spousal support is intended to help maintain a dependent spouse’s standard of living until he or she is able to become self-supporting. However, some forms of wrongdoing may be considered by the Court in determining spousal support issues. Domestic violence and financial irresponsibility on the part of either party are often considered.
Myth #2: Spousal Support Amounts are Totally Unpredictable
California has guidelines for calculating spousal support for temporary order which are pre judgment and uses the Disso Master program. Attorneys can purchase these programs and the San Diego Superior Court Family Law Bench in the family law courts in San Diego, Chula Vista, Vista and El Cajon use the same program. These guidelines determine an initial amount based upon the incomes of each party and many other factors. The court then considers additional circumstances and may adjust the support amount accordingly and the Court uses Family Law Code Section 4320 for permanent or post judgment of divorce spousal support orders.
Myth #3: A Good Prenup Can Help Breadwinners Avoid Future Spousal Support in a Divorce
While many prenuptial agreements contain stipulations waiving the right to spousal support, California courts can set aside those stipulations and award spousal support. A waiver of spousal support is very complicated and often the basis for a motion to set aside the prenuptial in the event of a divorce. Consult with an experienced pre nuptial attorney. For a waiver of spousal support in a prenuptial to even be considered, an attorney must represent the party who waives spousal support and many attorneys will not sign considering this malpractice.
Myth #4: The Court Automatically Awards Spousal Support
The spouse needing support needs to prepare a formal request and file it with the Court in a timely manner. In San Diego, this is called an Order to Show Cause.
Myth #5: A Spousal Support Order is Carved in Stone
Even if there is an order for “permanent” spousal support, there are several circumstances that can result in modification or termination. For example, a change in the payee’s living conditions or the payor’s income may result in modification. Almost no spousal support orders are non modifiable.
Myth #6: Living Together Can Keep Spousal Support Intact
Many payees believe that living with their significant other can avoid loss of support after remarriage. California courts have determined that since cohabitation often reduces a payee’s living expenses, modification or termination may be ordered.
Myth #7: A Payee is Entitled to a Share of Raises and Windfalls of the Payor
Spousal support is calculated based upon the income of the parties prior to separation. If the payor receives a substantial raise, obtains a better position, or even hits the lottery, the payee may not entitled to a share if this is post date of separation as the Court looks to the marital standard of living.
Myth #8: An Employer Can Refuse to Honor a Wage Assignment for Spousal Support
California law allows an employer who has received a wage assignment ten [10] days to begin sending the court ordered amount to the payee. If the employer fails to meet the deadline without proper cause, the employer may be declared responsible for the payment. Almost all San Diego DCSS orders for support have a wage assignment.
Myth #9: You Can’t Go to Jail for Refusing to Pay Spousal Support
Failing to follow any order of the court, including an order for spousal support, can have serious legal consequences. Being found in contempt of court can result in jail time under the Penal Code. Contempt is very serious and all must follow court orders and be in compliance.
Myth #10: Support Modifications Can Be Backdated
If a payor becomes unemployed, it is important to request modification as soon as possible. If modification is granted, it can’t take effect prior to the date the request was filed. This is extremely important if you have a change in income which is more than 10%. If you are being paid support, and believe that the income of the payor has changed, then you can request financial information once per year per the Family Law Code without filing a motion as long as support is still in effect.
For a free consultation about spousal support or other family law issues, call our office at 858-312-8500 or contact us online. Let a knowledgeable, experienced San Diego divorce attorney help you avoid costly divorce mistakes.