Thursday, October 16, 2008

Spousal Support after Retirement

Dear Famularo & Associates:

I am 65 years old and I live on Social Security. I have been divorced for more than ten years and have been paying spousal support to my ex-wife since our divorce. We were married for more than fifteen years. During the divorce, my ex-wife and I sold our home. We each received one-half of the money. I invested mine, and have been partially living off the investments I acquired. I remarried about six months ago, but my ex-wife has not. My new wife will be retiring at the end of this year.

My question is am I required to pay spousal support while I am living on Social Security and any income that I make off the investments I acquired since our seperation?

E.S. in Hemet

Dear E.S.

In that your marriage was a lengthy one- one that lasted for ten years or more- the court does not have the ability to terminate your spousal support. Even so, the court can reduce your current spousal support order to zero, thereby leaving the possibility of raising your spousal support at a later date, if appropriate.

Since you have been paying spousal support since before you retired, it is highly likely your spousal support should be reduced, if not to zero, then substantially. In awarding spousal support, the court must look at a number of factors. These include your ex-wife's need, your current ability to pay, your ex-wife's attempts to become self-supporting, and separate assets you each have available for support.

You have a right to retire. The court cannot penalize you because your income has decreased after your retirement. Furthermore, you are not expected to decrease the principal on your investments in order to pay your support, nor is your current wife's income considered when calculating spousal support for your ex-wife.

The court has great discretion in awarding spousal support to your ex-wife. In doing so, the court will weigh your current income, which consists of Social Security and dividends on your investments, against your ex-wife's need. The court will examine how much money your ex-wife reasonably needs by looking at her expenses and then deducting her income from those expenses. If there is a shortfall, that is her need. If you have the ability to make up that shortfall, you may be ordered to pay the difference.

Before the court can order you to pay the difference, it usually must look at what steps your ex-wife took to support herself. If she failed to take adequate steps to become self-supporting, the court can reduce her support to zero even if she has a financial need.

Since you are living on a fixed income, chances are your ability to pay support is greatly diminished. Usually in these situations, the court will drastically reduce the amount of spousal support you are ordered to pay or cut it to zero. The bottom line is you need to return to court to modify your spousal support.

Famularo & Associates
Temecula Lawyers

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