Disclaimer: This article does not constitute legal advice. If you have any questions about your individual situation it is best to seek the advice of an experienced legal professional.
In California, final support is most often referred to as “spousal support” or spousal maintenance. These terms acknowledge the need for spouses to assist each other during the economic transition after a divorce. Sometimes spousal support is long-term, and other times it is short-term. When spouses have a shorter marriage, spousal support usually ends after a short period. A marriage that has lasted longer may result in spousal support that lasts for a longer period of time. In divorce mediation spouses are empowered to choose the best option that suits them.
The spouse who receives spousal support is generally the lower earning spouse, while the higher earning spouse is referred to as the “payor” of spousal support. In some California divorces, spouses may rely on a prenup to waive spousal support and instead focus on dividing their community property. There are very specific, stringent legal requirements that must be met if either party is to waive spousal support with a prenup. Without the proper legal procedures, a prenup can be voided in California. Always seek independent legal advice before entering into a prenup. Both parties may waive spousal support as long as they are fully informed of their rights under California law to make a good decision.
While the traditional image of divorce involves couples going to court and fighting for their piece of the pie, more and more divorces are resolved peacefully out of court. One of the most popular and effective means for resolving divorce out of court is the non-adversarial process of divorce
mediation. Divorce mediation with a professional mediation firm offers increased options for spouses who want to structure spousal support in a way that suits their individual situation. This could include spousal support buyouts, drafting an agreement that provides for long-term or short-term spousal support, and deciding whether this agreement should be modifiable or not.
Key things to Remember:
Unlike court, divorce mediation allows the parties to have control over the outcome. What happens with spousal support is in the court’s hands, unless you choose to resolve your divorce out of court. In cases where couples have been married a long time, (usually over 10 years) the judge has a lot of discretion over the allocation of spousal support amount and duration. Meanwhile, short-term support is often, when necessary, decided by an equation in court and is called temporary spousal support. Temporary support usually lasts until the divorce is final and then the court can modify the support based on California FAMILY code 4320. Long term support is not based on a SIMPLE equation but instead is based on the factors in the family code 4320 for Spousal/Partner Support Declaration. Because there are many complex factors in determining spousal maintenance,
Will spousal support be modifiable?
Spousal support, as ordered by the court, can change based on circumstances in employment, retirement, and the budgets of both parties. This requires a court hearing and both parties’ participation. Divorce mediation with the right firm ensures that spouses are fully appraised of their
options and enter into lasting agreements that are less likely to run into future conflict.
Is a spousal support buyout a good idea?
Instead of allocating ongoing support some spouses choose, through mediation, to do a lump sum spousal support buyout. This can be a good idea for spouses with significant assets who want to make a clean break and waive the court’s jurisdiction for future allocation of spousal support due to changing circumstances. However certain risks and considerations should be clearly understood and discussed before going this route. Understanding the duration and financial availability of each party and the community assets is important to make a long-lasting decision for the sustainable future of both parties. Call us for a free consultation.
Can you Waive Your Right to Spousal Support in a California Divorce?
In California you can each waive your right to spousal support in a prenuptial agreement provided your prenup meets the legal requirements of California. You DON’T need a prenup to waive. There are other options, such as lump sum buyout, which can support you after your marriage, bypassing ongoing spousal support. If there is a legally, enforceable prenuptial agreement in which spousal support is waived, both parties can waive the court’s jurisdiction for spousal support. If there is no prenup, depending on the length of time you spent together and other complex factors in divorce mediation, you could agree to a specific amount of spousal support for a fixed duration of time or you can agree on a lump sum.Our firm can help you understand your options so you can make a lasting agreement that is fair to both parties.
Understand Your Options: Consult with Financially Qualified Divorce Mediators
There are many options for structuring spousal support in a divorce that can be tailored to your unique situation. Some high net worth couples choose to buy out spousal support and walk away from obligations to each other. This can be a fulfilling route for many, however you need to understand your options and work with a financially qualified divorce mediator. Lump sum spousal support buyouts require an astute analysis of the assets in the marital estate, the parties’ income and how to create future projections and modeling to ensure the fairest distribution of assets.
At Divorce Options San Diego, we are financially qualified divorce mediators who work with high net worth couples who may want to explore options for alternative spousal support arrangements. These arrangements are often coordinated with child support, in which tax advantage and other considerations must be assessed. Divorce can be traumatic, long drawn out process if you litigate. Choosing mediation for your divorce is less stressful, fair, quicker, and considerate for each participant and for family ties. Mediation enables the divorcing parties to make a thorough, respectful and lasting agreement that will support the best decisions for you and your soon to be ex and any children involved. Please contact our experienced high level West Coast divorce mediators to learn more about how to craft a respectful, durable divorce agreement.
