Do you need a QDRO?

Your retirement account could be a big ticket item during a divorce.  Experienced family law attorneys will tell clients that pensions and related retirement benefits are vital assets of high value that should be addressed whenever one or both spouses have been employed during marriage. Clients may be told by an attorney that they need a QDRO (pronounced QUADRO).  A QDRO is a qualified domestic relations order, which is a fancy description of what amounts to a court approved document that tells your Pension where the money should go after a divorce. This is another family law process that can cost between $1,000 and $2,000 dollars. But when do you actually need a QDRO? This chart shows when you need a special QDRO or when you can divide the pension without a QDRO. Make sure you know what type of retirement account you have before you walk into an attorney's office. 

My ex - remarried - do I get to stop paying support?

Yes. Under California law spousal support terminates on an ex spouse's re-marriage even if that event is not listed in judgment as a terminating event.  

This means, even if you fail to specify in your settlement agreement that support will end on re-marriage - you can still stop payments at that date. Marriage of Thorton (2002) 95 CA 4th 251.

 Contact amanda@gordonfamilylaw.com for more information. 

My marriage only lasted 2 years, do I have to pay temporary spousal support?

Maybe.  Experienced family law attorneys will tell clients that temporary spousal support can be ordered by a Court even in a short time marriage.  The party seeking support is required to show that the need for support exceeds his/her available resources. 

Under California law, spouses are obligated to support each other during marriage. Fam C §720.  While an action for dissolution of marriage or legal separation is pending, the court may order either spouse to pay an amount necessary for the support of the other. This is called Temporary support - or support Pendente Lite - to maintain the status quo of the parties until the divorce is final.  There are no statutory requirements to determine the propriety and amount of an award of interim or temporary spousal support. Rather, any such award is based broadly on the issues of need and ability to pay. Marriage of Dick (1993) 15 CA4th 144, 165.  

In most California counties - there are Superior Court schedules establishing temporary spousal support. However, the Court does not rely on these schedules for permanent spousal support. Each case is different, so contact a family law attorney to talk about your specific case.

Contact amanda@gordonfamilylaw.com for more information. 

I lost my job in the middle of a divorce, do I have to pay for health insurance for my soon to be ex spouse?

Probably Not. 

Health Insurance continues to be a tricky issue for divorcing families. Under the automatic temporary restraining orders that go into effect when you file for divorce in California, a party is prohibited from canceling or changing health insurance coverage. Family Code 2040(a)(3). This code section did not address what happens when an individual loses health insurance from a non voluntary termination.

Experienced Family Law attorneys in San Francisco California Bay Area will advise clients that if they lose a job during a divorce, they should give their ex spouse notice that due to a job change they will not be obtaining coverage for the ex spouse. This notice will give the spouse time to plan for new coverage. 

While there is clear answer under the family code, if you are fired or laid off from your job you are probably not responsible for obtaining coverage for your ex spouse. This is because if the cancellation or change is not voluntary then there is no violation of the ATROs.  Nevertheless, there may be an obligation to preserve COBRA rights for the non-employee spouse. And if you voluntarily quit you may be responsible for health coverage.  Additionally, a court could direct a party to obtain health coverage or to consider this expense when calculating child or spousal support.  If you lose your job during a divorce, it is important to understand your obligations - contact a family law attorney to learn more. 

 Contact amanda@gordonfamilylaw.com for more information. 

Can I deduct spousal support from my taxes if we are only separated and not divorced?

Yes, experienced Bay Area California family law attorneys will tell clients that spousal support is tax deductible to the payor even if you are still married.  

The IRS rules about spousal support or alimony state that alimony is deductible to the payor and income to the payee. IRS Rule 26 US Code Section 71 states that if you have a written Agreement, the payor spouse can deduct spousal support so long as the payments are in cash or check, you do not live in the same house as your ex-spouse, the Agreement is in writing, the Agreement states that payments will not continue after the death of the payee, and the payments are not marked as "NOT ALIMONY". 

Even if you are still legally married, if you no longer live in the same house and are making spousal support payments to your ex-spouse you can claim a deduction if you file taxes as Married Filing Separately.  If you file taxes as Married Filing Jointly, you cannot deduct spousal support.  IRS 71(e).

Many couples find it helpful to create a separation agreement - allowing for the dust to settle before divorce. Taking advantage of tax rules around spousal support deductions can reduce your liability at the end of the year and create more cash flow during a difficult time.  Contact a family law attorney or tax specialist to learn more about these rules.

Contact amanda@gordonfamilylaw.com if you are considering a temporary support order.