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Meigs
Meigs, Family Law Attorney
Category: Family Law
Satisfied Customers: 1346
Experience:  I am well equipped to handle any family law problem you might have.
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I am 71 years old , have collected social security

Customer Question

I am 71 years old , have collected social security for several years. My soon to be ex wife has received a social security payment based on my contribution - she will continue to received this payment after the divorce. Can the court assess spousal support in addition to the money she already receives from social security? I live in California.
Submitted: 1 year ago.
Category: Family Law
Expert:  Meigs replied 1 year ago.
Hello, I hope you are doing well today and thank you for allowing me to assist you.
Spousal support is generally discretionary upon the court and many factors are considered in whether or not to award spousal support:
California Law states:
4320. In ordering spousal support under this part, the court shall
consider all of the following circumstances:
(a) The extent to which the earning capacity of each party is
sufficient to maintain the standard of living established during the
marriage, taking into account all of the following:
(1) The marketable skills of the supported party; the job market
for those skills; the time and expenses required for the supported
party to acquire the appropriate education or training to develop
those skills; and the possible need for retraining or education to
acquire other, more marketable skills or employment.
(2) The extent to which the supported party's present or future
earning capacity is impaired by periods of unemployment that were
incurred during the marriage to permit the supported party to devote
time to domestic duties.
(b) The extent to which the supported party contributed to the
attainment of an education, training, a career position, or a license
by the supporting party.
(c) The ability of the supporting party to pay spousal support,
taking into account the supporting party's earning capacity, earned
and unearned income, assets, and standard of living.
(d) The needs of each party based on the standard of living
established during the marriage.
(e) The obligations and assets, including the separate property,
of each party.
(f) The duration of the marriage.
(g) The ability of the supported party to engage in gainful
employment without unduly interfering with the interests of dependent
children in the custody of the party.
(h) The age and health of the parties.
(i) Documented evidence of any history of domestic violence, as
defined in Section 6211, between the parties or perpetrated by either
party against either party's child, including, but not limited to,
consideration of emotional distress resulting from domestic violence
perpetrated against the supported party by the supporting party, and
consideration of any history of violence against the supporting party
by the supported party.
(j) The immediate and specific tax consequences to each party.
(k) The balance of the hardships to each party.
(l) The goal that the supported party shall be self-supporting
within a reasonable period of time. Except in the case of a marriage
of long duration as described in Section 4336, a "reasonable period
of time" for purposes of this section generally shall be one-half the
length of the marriage. However, nothing in this section is intended
to limit the court's discretion to order support for a greater or
lesser length of time, based on any of the other factors listed in
this section, Section 4336, and the circumstances of the parties.
(m) The criminal conviction of an abusive spouse shall be
considered in making a reduction or elimination of a spousal support
award in accordance with Section 4324.5 or 4325.
(n) Any other factors the court determines are just and equitable.
The purpose of spousal support is to provide for the Wife in the event of the divorce and to maintain the standard of living that was present during the marriage. If it is established at trial or hearing that the social security received accomplishes that, it will limit the court's ability to then tack on spousal support to the social security received. As stated, the purpose is to maintain the standard of living, not improve it, therefore, the factors above are considered by the court in any determination of spousal support. To answer your question, it depends on what the spousal support can maintain and if it covers the needs of the Wife. Please let me know if you have any other questions and I will be happy to provide you with more information.
Customer: replied 1 year ago.
did not answer the question - please site legal authority that supports your statement - it is my understanding that she is already receiving social security - it is my understanding that social security can not be garnished
Expert:  Meigs replied 1 year ago.
Normal Social Security can be garnished if there is a judgment to be garnished against for say unpaid spousal support. However, SSI, can not be garnished. The answer to your question is yes, the court can still award spousal support in addition to the Social Security that she is receiving as your spouse. However, the court will not allow her to double dip and receive more than necessary to keep the lifestyle she enjoyed during marriage. The social security plays into the factors (legal authority cited above) and how much the court could award her. It is very possible that the court could decide the social security benefit received by her is sufficient to support her after the marriage.
Customer: replied 1 year ago.
I do not see the legal authority you noted
Customer: replied 1 year ago.
I see - you are referring to the previous question - please give the full site - are you citing federal law or something else?
Expert:  Meigs replied 1 year ago.
The law cited is California Code sec. 4320. These are the factors that are assessed by the court when determining spousal support. Specifically in your instance, of relevance is 4320 (c); This is the section dealing with your ability to pay, as well as the benefits she is receiving. It is state law.
Expert:  Meigs replied 1 year ago.
http://www.courts.ca.gov/1038.htm

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