Frequently Asked Question
Frequently Asked Spousal
Can men ask for spousal Support in California?
Yes, the gender of the spouse is not a factor in receiving spousal. Spousal support is based on the earnings of each party. A husband can (and often does) get spousal support from his wife if she is the higher wage earner. The factors for determining “permanent” (long-term) spousal support is based on those listed in California Family Code section 4320. More specifically, these factors include the respective incomes of the parties, their ability to find work, whether there was domestic violence in the relationship and about 10 additional factors. A man is just as entitled to ask for spousal support and when you file an initial Petition or Response, it is normal for both parties to ask for potential spousal support. Whether one gets it or not, the court will have to decide.
Are there more men paying vs. receiving spousal support?
Of course. But, that is not because the law favors women to receive spousal support. As mentioned above, spousal support is based on who earns more money. More women receive spousal support because generally speaking, men earn more than their wives. In those cases where the wife earns more than their husbands, then the wife usually pays spousal support to their lower wage-earning husbands.
If you live in the same house can you get Spousal support/Child support?
The simple answer is yes, but it is less common. It is harder to get spousal support when the parties still live together because if you are still living together, the larger wage earner is probably still paying all of most of the household bills and expenses. If so, then the judge will likely consider the fact that the one spouse is paying for everything as “support” to the other. That being said, there are instances where judges order one party to pay the other spousal support even though they are living in the same house.
What bills will I list on my spousal support request?
When you ask for a hearing to determine spousal support, or any other financial orders, you must fill out and file what is known as an “Income and Expense Declaration”. It is a form that discloses an itemized list of all of your income and expenses. This paperwork will list the cost for your rent or house payment, utilities, cable, internet, food, cell phones, medical costs, and all other standard living expenses. The judge will analyze your expenses as part of determining whether you will get spousal support or not, and how much you will receive.
Usually if you are asking for spousal support and still living together, you may want to list your proposed expenses expected AFTER you move out. This way, a judge will know what you will really need after you separate from your spouse. You may also add lifestyle expenses such as the cost to maintain your hair and nails, your gym membership and other similar expenses. But, whether a judge will take these expenses into consideration depends on your lifestyle during the marriage, how much income the other person is earning and even what assets you both have. If a wife was used to driving around in two vehicles because her higher income earning husband was paying for her to use two different vehicles, the court may not necessarily force the husband to pay for both vehicles in a divorce. We’ve had a client who were used to getting bi-weekly massages and professional hair styling, which all came out of their monthly spending. In these cases, and if this was the lifestyle during the marriage was such, and there is sufficient income on the part of the paying spouse, then the judge is likely to order the husband to continue to pay for such a lifestyle.
When should you ask for child support or spousal support?
At the very beginning of the process. In terms of the divorce process, if you are inclined to ask for support or if you need it, you should list tis on your initial dissolution filings, and you should bring a request for a hearing as soon as possible and ideally around the same time as the initial filing. If you do not seek an order for spousal support early on, the judge will assume you don’t need it. And, if you don’t seek spousal support for a long time, the judge will KNOW you don’t need it because you have been surviving without spousal support for a long time. Therefore, whether you are the husband or the wife, if you need support, ask for it right away. Checking off the box in your Petition or Response is not enough, you must also file paperwork to actually get a hearing to bring your evidence and argue your request for spousal support in an actual hearing in front of a judge.
I cannot afford spousal support, what can I do?
Just because you think you cannot afford to pay spousal support does not mean the judge will agree. You may think that you cannot afford spot pay spousal support because after you pay your own rent and food expenses, there is not enough money left over to pay spousal support to your spouse. You need to understand this VERY important theory in family court, spousal support is paid BEFORE you pay for your own rent of food. What does that mean? That means that if a spousal support order is made, the court will also issue what is known as a “wage assignment”, which is an order to take the spousal support payment directly out of your check before you even get paid. This means that your spousal support payment will come out of your check before you pay your own bills.
My situation changed; can I request to lower the amount I pay?
Yes. Spousal support is almost always based on your present income. So, if your income goes down, you can usually get your spousal support payments reduced. But, if your income goes up, it is likely that your spousal support payments will go up. We call it a change of circumstance and you can always go to the court when it comes to financial issue and ask for your financial obligations to be changed. As long as the change of circumstances is significant, you can go to Court and request for a change of the order.
How can I determine how much Spousal Support or Child Support I will pay (or receive)?
You can find a child/spousal support calculator online. It is called DissoMaster or ExSpouse. (they work the same way) You can put the relevant factors into the calculator and the outcome may be close to what you can actually expect to receive from a judge. Bit, the numbers you put into the calculator MUST be very accurate or the outcome might be very different from what you can actually expect to receive. But, because the calculation can be very tricky, we always recommend that you call us to help you determine what you should really expect to pay or receive when it comes to both spousal support and child support.
Can I ask for more than the DissoMaster Spousal/Child Support calculation shows?
Sure, but that doesn’t mean you will get it. As far as spousal support is concerned, the court has the authority to make orders higher or lower than the DissoMaster calculation shows. (Not necessarily so for child support) Again, this is where the Family Code 4320 factors come into play. How much you actually receive will be determined after a full hearing on the issues and the 4320 factors.
Can I get Spousal Support in a Legal Separation case?
Yes, it works exactly the same as a divorce. But call us before you file for Legal Separation. Most people are very confused on why you should or should not file for Legal Separation. It probably does not mean what you think it means. You need to ask yourself, “why am I filing for legal separation if I really want to be divorced?”
A common support question: “I am getting divorced, I have X kids, how much child and spousal support can I get?”
People often ask the generic question, “How much support will I get?” In California, if you are not married, you will not receive spousal support no matter how long you lived together. But, if you have children together, as long as they are under the age of 18, you can ask for child support. You should understand that Spousal Support and Child Support are completely different and have very little to do with one another. Many computer programs that the Courts and attorneys use will calculate the amount for child support and spousal support on the same sheet. Child support is a very complex formula based mostly on the relative incomes of the parties and the amount of time the kids spend with each respective parent. Also, if you and your ex can come to an agreement on the amount of child support that will be paid, the Court will usually agree. But, if you have to fight about the amount before a judge, there is no negotiating the amount for child support. The judge will run the calculations and he or she will order whatever comes out of the calculation. On the other hand, as for the spousal support calculation, the Court has a lot more authority to make higher or lower orders.
Can I lose custody of my children or visitations if I do not pay child custody?
A parent’s right to visit with their children is not governed by whether or not they pay for child support. In the eyes of the law, the money part is separate issue from the parenting and custodial part. Oftentimes the receiving spouse will say, “you haven’t paid child support so you can’t see your child.” Wrong. In fact, if you or your spouse withholds the children from the other parent because they cannot or will not pay child support, the judge will be very upset. The children need a relationship with both parents in order to grow up healthy and happy. If you withhold the children from the other parent over financial issues, then you are harming your child and this will truly anger the court and you will likely suffer negative orders form the judge. We recommend that you never do this. Simply, it is absolutely improper to deny a parent’s rights to see their child because they cannot pay or will not pay support. Even for those who can pay, but do not, it is the same. Again, the money issue should have no effect on the relationship that court wants any parent to have with their child. Children should still have a right to see their other parent even if that parent is not paying support.
Now, that being said, if someone chooses not to pay support after they are ordered to pay support, there are other methods and actions to handle this issue in court. Withholding visitations is not the method.