spousal support Archives - Page 2 of 2 - Lonich Patton Ehrlich Policastri

Tennessee Supreme Court Prohibits Lifetime Alimony for Ex-Spouse

November 30, 2011/in Family Law /by Mitchell Ehrlich

On September 16, 2011, the Supreme Court of Tennessee held that a woman who earned $72,000 a year was not entitled to lifetime alimony (permanent alimony) from her higher-earning ex-husband.

In Gonsewski v. Gonsewski, 2011 WL 4116654 (Tenn. Sept. 16, 2011), Johanna and Craig were married for twenty-one years with two adult daughters. Johanna earned $72,000 a year in an IT position and Craig earned more than $137,000 a year as an accountant. At the trial level, the court declined to award spousal support of any type to either party. The Court of Appeals reversed the trial court’s judgment and ordered the husband to pay the wife lifetime alimony in the amount of $1,250 per month until her death or remarriage. The court reasoned that, although there was no need for economic rehabilitation given that Johanna was a college graduate and had a steady career, alimony in futuro was ‘necessary to mitigate the harsh economic realities of divorce’ due to the disparity in the parties’ incomes. Craig appealed.

The issue before the Tennessee Supreme Court was whether permanent alimony should be awarded to a spouse who has a college degree, good health, a stable work history in a relatively high paying job, and a lack of demonstrated need for such long-term alimony. The court reversed the appellate court decision, noting that it is unlikely that both parties will be able to maintain their pre-divorce lifestyle given two persons living separately incur more expenses than two persons living together and there was no abuse of discretion by the trial court. Thus, Johanna should not be awarded permanent spousal support.

This decision affirmed Tennessee’s traditional analysis of considering both ability and need in making permanent alimony determinations. While Craig may have had the ability to pay lifetime alimony, Johanna did not have the need. In California, courts consider need and ability to pay when setting temporary spousal support, which may be ordered after separation pending trial. However, when setting permanent spousal support, the court must consider approximately fourteen statutory factors, including need and ability to pay, when determining permanent spousal support. As such, it is likely that the Gonsewski case would have been similarly decided in California grounds given the higher standard provided by the fourteen factors set forth in section 4320.

The Certified Family Law Specialists* at Lonich Patton Erlich Policastri have decades of experience handling complex and heavily disputed divorce and support issues. If you are contemplating divorce, please contact the Certified Family Law Specialists* at Lonich Patton Erlich Policastri, who can provide you with an in depth analysis of your issues. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

*Certified Family Law Specialist, The State Bar of California Board of Legal Specialization

Post-Nuptial Agreements and Spousal Support

July 7, 2011/in Family Law /by Mitchell Ehrlich

Spousal support and prenuptial agreements often make headlines in high profile divorces; however, the lesser known separation agreement (a type of post-nuptial agreement) can also pose difficult issues for divorced couples. In North Carolina, for example, NASCAR Chairman Brian France is fighting to rescind a separation agreement that calls for him to pay more than $40,000 a month in spousal and child support. [NASCAR Divorce Case Gets Messier]. These types of agreements involving spousal support are valid under California law.

Separation agreements—also referred to as property settlement agreements or marital settlement agreements— are often executed by spouses when their marriage breaks down. The parties are free to agree to a division of property rights and/or rights and duties of spousal and child support, and then have a court approve the agreement. There are, however, statutory limitations on agreements regarding spousal support that must be taken into consideration.

One of the primary obligations imposed by statute on married persons is the obligation of support. Spousal support provides one’s spouse with the necessities of life, measured by the lifestyle of the particular parties. This obligation of support has long been regarded as unalterable during marriage. California Family Code section 1620 explicitly states, “Except as otherwise provided by law, a husband and wife cannot, by a contract with each other, alter their legal relations, except as to property.” Therefore, spouses in an ongoing marriage may not enter into post-nuptial agreements waiving or limiting the right of either spouse to support the other in the event of separation.

Section 3580 of the California Family Code, however, creates an exception to this prohibition. A husband and wife may agree, in writing, to an immediate separation and may provide in the agreement for the support of either of them and of their children during the separation or upon the dissolution of their marriage. The important distinction is that this agreement can only be made when a couple is ready for an immediate separation. Absent an immediate intent to separate, a court will not uphold a post-nuptial agreement altering spousal support.

If you have a post-nuptial agreement in place, if you are contemplating having one put together, or if you have been asked to sign a post-nuptial agreement and you are concerned about how it may affect your rights, the Certified Family Law Specialists* at Lonich Patton Erlich Policastri have substantial experience in handling post-nuptial agreements. Please call our office to schedule a free 1/2 hour consultation.

*Certified Family Law Specialist, The State Bar of California Board of Legal Specialization

Spousal Support Waivers in Pre-Nuptial Agreements Given Further Protection

June 2, 2011/in Family Law /by Mitchell Ehrlich

The California Appellate Court recently upheld a spousal support waiver in a pre-nuptial agreement despite the fact that, under current California Law, the provision should be struck down as invalid.

In the May 24th, 2011 appellate court decision of In re Marriage of Howell, the California Court of Appeal for the Fourth District enforced a future spousal support waiver of a pre-nuptial agreement signed in 1999; despite the fact that under California Family Code section 1612, the provision should have been invalidated. Family Code section 1612, which is part of the Uniform Pre-Marital Agreement Act, provides in subsection (c) that:

Any provision in a premarital agreement regarding spousal support, including, but not limited to, a waiver of it, is not enforceable if the party against whom enforcement of the spousal support provision is sought was not represented by independent counsel at the time the agreement containing the provision was signed, or if the provision regarding spousal support is unconscionable at the time of enforcement.

Mrs. Howell signed the pre-nuptial agreement, containing a waiver of future alimony, at her husband’s request. At the time, she could not afford to hire an attorney to review the agreement and her husband (then, fiancé) did not offer to pay the cost for her to consult with an attorney.

At the trial court level, the court invalidated the spousal support waiver finding that Family Code section 1612, enacted in 2002, did in fact apply retroactively to the agreement, fully executed in 2002. On appeal, the appellate court did a full analysis of whether the statute should be applied retroactively to a 1999 agreement. Finding that it constituted a “material change in the law” and that it was not intended to apply retroactively, the appellate court ruled that the trial court erred in retroactively applying the statute and upheld the validity of the spousal support waiver.

If you have a Pre-Nuptial Agreement in place, if you are contemplating having one put together, or if you have been asked to sign a pre-nuptial agreement and you are concerned about how the Howell decision and Family Code Section 1612 may affect your rights, the Certified Family Law Specialists at Lonich Patton Erlich Policastri have substantial experience in handling pre-nuptial agreements. Please call our office to schedule a free half hour consultation.

What is Income for Purposes of Support?

May 3, 2011/in Family Law /by Gina Policastri

In a case of first impression, the Fourth District Court of Appeals affirmed a trial court’s ruling that two benefits received by a member of the Navy – “basic allowing for housing” (BAH) and “basic allowance for subsistence” (BAS) – can be considered income for purposes of child and spousal support. Father argued that inclusion of these benefits was improper because under federal law they are not taxable income and the court violated the federal preemption doctrine by holding that they were income for purposes of support. The trial court disagreed, stating that “(i)f it looks like income, it is income no matter how it’s paid to you.” In affirming the trial court, the panel cited and quoted from sister state cases on this issue, which have held that “(t)he nontaxable status of military allowances does not suggest Congress had any preemptive intent with regard to either child or spousal support” and “the protection of certain military allowances from wage garnishment for support arrearages does not indicate Congress intended to preempt state family support law.” It concluded that “the doctrine is inapplicable, as under United State Supreme Court authority family law support matters are within the province of state law unless ‘Congress has positively required by direct enactment’ that state law be pre-empted.’ We join in courts across the nation in holding that such allowances of are included in a party’s gross income for purpose of support when state law encompasses them.”

For more information about California support issues, please contact us. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Steer Clear of Potential Spousal Support Tax Pitfalls

February 11, 2011/in Family Law /by Mitchell Ehrlich

Generally speaking, spousal support is taxable to the recipient and is deductible by the payor. For example, if you are paying spousal support to your ex-wife the money she receives would be taxable to her as income. Likewise, generally you would be able to deduct it on your tax return. However, you may not be aware that there are several exceptions to this rule. In fact, it is necessary that you closely observe the spousal support formalities in order to take advantage of deducting payments to your ex-spouse.

In order for spousal support payments to be deductible, they must be made in cash. However, in this context, “cash” is not only currency. It can also include check or money orders payable on demand. The payment itself must be received on or on behalf of the supported spouse, and the spouse must be entitled to this payment under a divorce or separation instrument. As an illustration, if you and your ex-spouse privately decide you will pay her a certain amount per month, you cannot deduct this amount from your taxes as the payment was not made pursuant to a divorce/separation instrument. On the other hand, if your Marital Settlement Agreement states that you must pay your ex-wife, you can likely deduct the payments on your taxes.

In addition, the payment obligation must be limited by the recipient spouse’s death. For example, assuming that your settlement agreement requires you to make payments beyond your ex-spouse’s death, none of these payments are deductible support.

These are just some of the several requirements for deductible spousal support. For more information about making sure you are following the proper tax rules in relation to your spousal support payments, please contact the San Jose divorce attorneys at Lonich Patton Erlich Policastri. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

After Paying Out £42 Million in Alimony, Phil Collins Says He is in No Rush to Remarry

February 3, 2011/in Family Law /by David Patton

Famous musician and song-writer, Phil Collins, gave an interview to the UK Mirror about his past and present romances. With three ex-wives, Collins has paid out over £42 million in alimony. In the U.S., this would translate to approximately $66.5 million in settlement payments. Collins is currently dating news anchor Dana Tyler, whom he met in 2006 while she was interviewing him about a Tarzan stage show that was set to play on Broadway. While Collins had a lot of nice things to say about Tyler, he made it clear that he believes he is better off not remarrying. For more information please see the full article.

If you have been bitten by alimony payments, before choosing to remarry, it would be a good idea to make sure you have a solid prenuptial agreement in place. A prenuptial agreement is a contract between the two prospective spouses. It can address a wide variety of issues including property rights and obligations during marriage and upon divorce. A prenup might be right for you if prior to your marriage you own real estate, own more than $50,000 of assets aside from real estate, have ownership rights in a business, or earn a salary of more than $100,000 per year.

If a prenup sounds like a good idea, it is wise to consult a qualified family law attorney for advice. However, before seeing an attorney, it is recommended that you and your fiancée discuss the essential terms of the agreement. This way, your lawyer will have a better understanding of your needs and concerns.

For more information about prenuptial agreements, please contact the family law attorneys at Lonich Patton Erlich Policastri. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Sources:

Nolo

Posts