In California, spousal support is based on the need of one party to receive it, and the ability of the other party to pay it. Spousal support will not be based on the wrongdoings of one spouse against the other – as a punishment for the wrongdoer.
This is part 2 of frequently asked questions regarding spousal support and responses.
What specifically are the factors a judge must use to determine whether to award – or not to award spousal support?
First the judge must consider the earning capacity and the standard of living the spouses had during their marriage.
The judge looks at:
- What are the marketable skills of the spouse requesting support?
- What is the job market for those skills?
- How long and at what cost would it take for that spouse to get the training and/or education to have more marketable skills or to get a job?
- Was the requesting spouse’s earning capacity impaired from periods of unemployment due to devoting oneself to domestic duties? If so, to what extent?
How does spousal support affect income taxes?
How and whether spousal support affects income tax obligations, depends on when the final judgment awarding support is executed.
If the final judgment was executed before December 31, 2018, then the ex-spouse paying the support can deduct the support from their federal income tax forms, and the ex-spouse receiving the support pays income taxes on that support.
If the final judgment was executed after December 31, 2018, the federal law changed. Now, the ex-spouse cannot deduct the support payments for their federal taxes, and the ex-spouse receiving support does not have to declare it on their federal income tax forms.
However, the California state tax laws have NOT changed (as of February 29, 2020) and for state income taxes, the ex-spouse paying support can still deduct the amount on state tax forms, and the ex-spouse receiving support must report the amount as income on their state tax forms.
One other caution, California treats registered domestic partnerships the same as married couples regarding spousal support, but the federal government tax laws only refer to spousal support, not support. To ensure proper income tax filings, speak with an attorney who is knowledgeable in this area of law.
Will spousal support agreements written by the parties be upheld by the courts?
You and your ex-spouse-to-be may write your own agreement regarding spousal support; whether there will be spousal support, for whom, how much, how often, and for how long. However, it is still up to the judge to determine whether to approve it. There is no specific form for spousal support, so get help from an attorney or family law facilitator.