The only thing more stressful than a divorce is having to go back to court, to enforce the divorce order that your judge already handed down. (As if the first time wasn’t enough, right?)
Unfortunately, that’s exactly what some people have to do.
Whether you like them or not, the terms of your divorce are not optional. California courts will expect you to obey them, and failure to do so can result in some fairly significant financial and/or legal consequences—including a charge for contempt of court.
Here’s what you need to know about contempt of court in California, and what the Maples team can do to help you navigate these serious claims.
Contempt of Court: 101
Contempt of court occurs when someone willfully or intentionally refuses to comply with a court order. This is a criminal charge (meaning that it isn’t handled by civil courts) which can result in steep fines, and—yes—even jail time.
Before you run out and immediately call foul on your ex for screwing something up, though, take a step back and consider whether this hefty charge is really necessary.
In our experience, most non-compliance comes down to a simple misunderstanding—maybe the order was vague, or a certain requirement got overlooked. These errors can usually be figured out without going to court, and certainly without needing to charge someone with contempt.
For contempt to be appropriate in divorce, the level of defiance has to be fairly significant, and/or the subject matter quite serious. (Meaning that a dispute over pet custody or grandma’s heirloom silver likely won’t cut it.)
Examples of situations where contempt might be appropriate include:
If one of these scenarios sounds familiar to you, then you may be able to file for contempt, so long as you meet the elements.
Elements of Contempt of Court
A charge of contempt commences when someone files an “Affidavit for Contempt.” However, you won’t get very far in this process unless you also have all of the right elements.
In California, these elements require you to provide proof that:
There was a valid court order in place. In addition, the terms must be clear; California courts are unlikely to punish someone over a vague or poorly worded order.
The accused knew about the court order. A quick text won’t cut it here; instead, the accused must have received notice via proper service.
The accused willfully violated the court order. This element can be a bit tricky, but usually requires some sort of purposeful refusal to comply—meaning an accidental oversight or misunderstanding won’t be enough. Here, the accused knew about the obligation, and still refused to comply.
A claim of contempt that can’t check all these boxes is unlikely to be successful in California court.
Rights of the Accused
To protect the rights of the accused, California legislatures have outlined certain due process rights for those who have been charged with contempt.
In layman’s terms, “due process” is basically just fancy legal jargon that refers to a system of rules and rights that protect people who have been charged with a crime. Due process ensures that whatever legal process follows is done correctly, and that someone isn’t unfairly charged or convicted.
Those who are charged with contempt of court in California, also enjoy these due process protections. Some of which include:
The right to be notified of the charges against you. This notice must have been done via proper service; a text or casual email won’t cut it.
The right to have representation. Every person has the right to an attorney. If an accused can’t afford one, then the state is obligated to provide one for you.
The right to a hearing. California residents have the right to be present when charges are brought against them. At this time, they have the right to present their defense, and to cross examine any witnesses brought against them.
The right to a jury trial. Since contempt is a criminal charge, in some situations, an accused may even have the right to a trial by jury (although, the law is a little vague on exactly when this would be appropriate).
The right to have the charges dismissed, IF their accuser can’t meet their burden of proof.
Consequences of Contempt of Court
If a California judge upholds a charge of contempt, then the penalties will vary, depending on what terms of the divorce order were violated. However, some of these punishments might include:
A $1,000 fine;
Mandatory community service;
The seizure of assets;
Suspension of licenses;
Liens on property; and even,
Five days of jail time for each instance of contempt.
These are just some of the potential consequences for first time offenses. In California, the punishments for contempt of court will increase in severity, if convicted again. And even more for third time convictions, so it’s not something you want to mess around with.
At the end of the day, however, the ultimate goal of contempt is to pressure another party into complying with a valid court order, and you don’t always have to use contempt to do that.
To find out more about enforcing divorce orders in California, speak to your family law attorney today about your options.
Do You Have More Questions About Contempt of Court in California?
While contempt of court is a less commonly used method of enforcement, it’s still a possibility—especially in cases of extreme and repeated instances of noncompliance. And whether you need help fighting this charge, or pursuing it, you’ll need an experienced family law attorney on your side.
If you have more questions about contempt of court in California, and how it will work in your situation, we want to hear from you. Call Maples Family Law today at (209) 989-4425, or get in touch online, and let us help you navigate this important issue.
When your ex refuses to pay spousal support, is late on payments, or doesn’t give you the full amount, this can be understandably frustrating. Especially since the entire point of spousal support is to help a homemaker become economically independent after a divorce. Without this reliable, financial assistance, getting back on your feet becomes much more difficult.
If a judge included spousal support in your divorce order, it isn’t optional. Your ex might not like you, or agree with the verdict, but the hard truth is, that court orders are as iron clad as any other law—the only difference being, that it’s personalized to you. And California courts don’t look kindly on law breaking.
If you need to enforce spousal support in California, here’s how that might look in your situation.
Enforcing Spousal Support: Earnings Assignment
The easiest and fastest way to enforce spousal support in California, is to file an earnings assignment with your county clerk immediately after your divorce is finalized. An earnings assignment—also known as wage garnishment—is a legal document that requires your ex’s employer to pay you spousal support before giving them their take-home pay. This type of enforcement is automatically available to every California divorce.
Filing an Earnings Assignment in California
The only requirement to filing an earnings assignment, is that your divorce is finalized. Once you have your support order from the judge, activate your earnings assignment by completing:
An Earnings Assignment Order for Spousal or Partner Support (Form FL-435).
Upon completion, take the finished forms (and attachments) to your local clerk for signatures. After everything has been processed, you can pick them up and have copies properly served to both your ex and his or her employer. This is done via mail, and must be initiated by someone who is not a party to the case (meaning: you can’t do it yourself). Make sure to have your server fill out two proof of service forms (one for your ex, and one for the employer), as these will also need to be filed with the clerk.
Earnings Assignments Are Not Required
Although convenient and efficient, wage garnishment isn’t actually required. If both parties agree, an earnings assignment can always be “stayed,” or rather: put on hold. Though, it’s important to note, that a stay of earnings can always be reversed, if proper payments are not made on time in the future.
How Long Before an Earnings Assignment Takes Effect?
Once everything has been filed and served, your ex’s employer will have ten days to begin deducting spousal support from the paycheck. If they do not, the employer could be held liable for payments in your ex’s stead.
Enforcing Spousal Support in California: Other Tactics
If your ex falls behind on payments, or you are having trouble with an employer not meeting the terms of a valid earnings assignment, you may need to involved the court again. In these situations, a judge might reinstate an earnings assignment, or possibly hold an employer liable for noncompliance, if applicable. During this process, you will likely need to make an accounting of all missed payments, so that the increased amount can be included in the amount owed.
While it’s possible for you and your attorney to do these things on your own, if you are still having problems, at this point you might also want to consider soliciting outside help.
Local Child Support Agency (LCSA)
One way to get help enforcing spousal support in California, is to open a case with your local child support agency (or LCSA). The LCSA is authorized to help enforce orders of both spousal support and child support, and they can do so at no charge to you.
The biggest benefit to using the LCSA, is the arsenal of enforcement tools they have at their disposal—tools that certainly aren’t available to the average citizen. To enforce spousal support in California, the LCSA can:
Report all late and missed payments to major credit reporting agencies, detrimentally effecting credit scores;
Notify the U.S. State Department, who can place a holds on the passport of any individual owing $2,500 or more in support payments;
Put a lien on your ex’s land or house, so that if the property is sold, profits can’t be collected on the proceeds until support payments are made;
Suspend any state-issued licenses, including any driver’s, business, or professional licensures your ex might have;
Use the Franchise Tax Board to collect money from bank accounts, real property, deposit box cash, or even vehicles owned;
Notify the IRS to take support payments out of tax refunds before they issue anything to your former spouse;
Take the owed support out of unemployment benefits, or workers compensation; and even,
Claim lottery winnings—if your ex happens to be so lucky. (And there’s definitely some satisfying karma in that, we think.)
As you can see, the tactics used by the LCSA are much more motivating than anything you can do on your own, and since they’re available at no cost to you, it might make a lot of sense to just skip the drama, and involve them in your case as soon as possible.
Contempt of Court
In extreme cases, it might be necessary to enforce spousal support by holding your ex in contempt of court. Unlike divorce cases, which are held in civil court, a charge of contempt is a very serious criminal charge, and could result in jail time.
When deciding on contempt, the judge will analyze whether or not the support was withheld on purpose—particularly if your ex was able to pay, but just decided not to. Because while you can’t (technically) get thrown in jail for being in debt, intentionally ignoring a court order can definitely get you there. This is usually a measure of last resort, though, and most judges will attempt to find a reasonable solution before putting anyone behind bars.
Spousal Support Modification
Because there are such serious consequences attached to not paying spousal support, if you are on the paying end and cannot fulfill the court’s order, it’s important you notify them as soon as possible. The court understands that life is unpredictable, and circumstances change. That’s why there are ways to modify a spousal support agreement—ones that don’t involve enraging the Powers at Be for not paying (which, really, is never a good idea).
Communication is the biggest key, here. As soon as you are aware of the change in circumstance, don’t wait. Notify the court, and fill out the necessary forms to initiate a hearing to modify. Amount changes cannot be applied retroactively, so acting fast is critical, as you’ll still be on the line for the original amounts, however long it takes you to get the wheels rolling.
Depending on the reasons for your request, the court may reduce the amount, though they’re unlikely to eliminate altogether.
Attorneys to Enforce Spousal Support in California
For many divorcees, spousal support is a critical means of income in the post-divorce era, and not receiving these funds in full and on time can be extremely stressful and financially crippling.
If you are entitled to receive regular spousal support, and are not getting it, we can help. Call us at (209) 989-4425, or get in touch online to schedule your consultation today. With our assistance, we can make sure you receive the funds you’re entitled to, without the stress and headache of going it alone.
Spousal Support Payments Are No-Longer Tax Deductible if You Divorce After January 1, 2019
Divorce can be complicated, particularly where there are children involved. However, even cases involving significant amounts of spousal support are highly contentious. Prior to the 2019 change, The IRS provided a useful negotiation tool, making spousal support tax-deductible to the paying spouse; this will all end on January 1, 2019. This article will briefly discuss how support payments and taxes interacted before the January 1, 2019 laws go into effect, and how support payments and taxes will interact after the January 1, 2019 laws go into effect.
If you received a divorce in California, there are four general areas that the tax laws will impact that divorce: (1) dependency exemptions; (2) division of property; (3) tax filing status; and (4) support – this article will specifically discuss the tax implications for support orders, which are issued in conjunction with a dissolution proceeding.
There are 3 basic forms of support in California: (1) family support; (2) child support; and (3) spousal support (commonly referred to as “alimony”). Each form of support receives different treatment under the tax code, which makes it essential that people seeking a divorce contact a competent family law attorney, so they can assist you in determining whether support payments are tax-deductible, or whether that support is considered income for tax purposes.
Family Support Agreements and Their Tax Implications Prior to the Implementation of the January 1, 2019 Tax Laws
In California, provided both parties agree in writing, parties to a dissolution can opt to have a support order for both family and spousal support entered, this is referred to as “family support.” This combination allows the parties to treat the entire “family order” to be treated as though it were spousal support or child support. The practical implication of this is that a “family support” order can be deemed entirely tax-deductible (for the party paying) and entirely taxable (for the party receiving the support). Alternatively, the entire “family order” can be non-taxable like child support. Since a written agreement is a pre-requisite to a “family order”, that written agreement needs to expressly set out the nature of the “family support” if you want to effectuate your desired goals as it relates to taxes.
It is important to note that since “family support” requires an agreement, that agreement can be negated unilaterally by either party. If this happens, then the Court will enter a child support order in conjunction with a spousal support order. The pre-2019 tax implications for these orders is discussed below.
Child Support and Its Tax Implications Prior to the Implementation of the January 1, 2019 Tax Laws
Pursuant to IRS Code §71, subsection (c)(1), states: “Subsection (a) [the subsection establishing that support payments are taxable]shall not apply to that part of any payment which the terms of the divorce or separation instrument fix (in terms of an amount of money or a part of the payment) as a sum which is payable for the support of children of the payor spouse.”
As a general rule, child support payments are not imputed to the recipient (commonly referred to as the “Payee”) of that support’s income, which means that child support payments do not constitute taxable income to the payee; similarly, child support payments are nottax-deductible to the person making the payment (commonly referred to as the “Payor”).
A pre-requisite to obtaining the non-taxable status on these payments is that the Court specifically designate the amount of the payments as “child support.” In the event that the Court is silent on the nature of the payment, it is possible that those payments will not be considered “child support” for tax purposes; a prime example is the federally claimable “Child and Dependent Care Credit. Spousal support is where most battles regarding taxable amounts take place, though this will all change January 1, 2019.
Spousal Support (“Alimony) and Its Tax Implications Prior to the Implementation of the January 1, 2019 Tax Laws
IRS Tax Code §71, subsection (b)(1), states: “The term ‘alimony or separate maintenance payment’ [which are taxable/deductible] means any payment in cash if:
(A) “such payment is received by (or on behalf of) a spouse under a divorce or separation instrument”
(A) “a decree of divorce or separate maintenance or a written instrument incident to such a decree”
(B) “a written separation agreement” or
(C) “a decree (not described in subparagraph (A) requiring a spouse to make payments for the support or maintenance of the other spouse.”
(B) “the divorce or separation instrument does not designate such payment as a payment which is not includible in gross income under this section and not allowable as a deduction under section 215”
(C) “in the case of an individual legally separated from his spouse under a decree of divorce or of separate maintenance, the payee spouse and the payor spouse are not members of the same household at the time such payment is made” and
(D) “there is no liability to make any such payment for any period after the death of the payee spouse and there is no liability to make any payment (in cash or property) as a substitute for such payments after the death of the payee spouse.”
In plain English, “spousal support” and “alimony” mean the same thing under IRS Tax Code §71. This means that the spousal support recipient (“Payee”) treats those support payments as taxable income (since the support payments constitute income pursuant to the Tax Code. On the other side of the spectrum, the person making the spousal support payments (“Payor”) treats those payments are 100% tax deductible.
The fact that spousal support payments to the Payee are considered taxable income creates an additional consideration; similar to the tax requirements for independent contractors. Since the Payee will be taxed on the entire support payment at the end of the year (rather than having taxes taken out when the money is transferred), it is wise for the Payee to put about 20% of the total support payment into savings so that the Payee is not required to dig into their wallet during tax season.
On the opposite end of the spectrum, considering the additional expense of support payments, many Payors find themselves unable to maintain their previous quality of life vis-à-vis living expenses. Since spousal support payments are considered 100% tax-deductible, the prudent Payor may opt to reduce the number of withholding allowances with their employer to increase the amount of money they receive each paycheck (you should contact an expert on this matter to determine precisely how much you should modify your withholding allowances so that you net the same amount of money annually).
The preceding portion of this article refers to the state of tax law prior to the enactment of the new law on January 1, 2019. It is entirely possible that these new tax laws will be altered, or returned to their pre-2019 status, when the next administration takes office; it is important to understand the laws of both schemes if that occurs.
Having laid out precisely how the old tax laws interacted with various forms of support payment, the remainder of this article will discuss how the 2019 tax law will impact the various support payments.
Where Did The 2019 Changes to The Tax Code, In Relation to California Support Payments, Come From?
It is unlikely that this article is the first time you heard about the changes to the tax code that are going into effect on January 1, 2019. As noted above, spousal support is 100% tax-deductible to the Payor, while simultaneously constituting earned income to the Payee. This will all change on January 1, 2019.
President Trump’s hallmark achievement thus far is the Tac Cuts and Jobs Act (commonly referred to as “TCJA”). This law goes into effect January 1, 2019, but will have absolutely no impact on divorces, and support orders) entered into prior to December 31, 2018.
As a practical matter, the TCJA changes will make dissolution negotiations far more difficult; this is particularly true where the parties getting divorced have a high net-worth. The reason for this is probably straightforward, but we will use a few examples to bolster the point.
Pre-2019 Example: Harry and Wendy are seeking a divorce in July of 2018. Harry and Wendy have been bickering about who gets possession of their community property summer beach house, and neither of them are willing to share; it’s an all-or-nothing situation. Harry, who makes $500,000 per year, realizes that he has an additional bargaining chip – he offers to pay Wendy an additional $5,000 per month in spousal support, until she remarries, in exchange for possession of the summer beach house. Wendy, who earns roughly $50,000 per year, would love to have the additional income for quality-of-life purposes. Wendy accepts Harry’s offer. Come tax time, Harry pays property tax on the summer beach house, and only pays income tax on $440,000 of his income because the entire $60,000 is tax-deductible. Wendy does not pay taxes on the summer beach home but pays income taxes on $110,000 because the entire $60,000 in spousal support is considered income.
NOTE: This example only focuses on the additional spousal support Harry offered in exchange for the summer beach house, butthe original support would be treated identically.
Post-2019 Example: The same example as above, however, the results are very different. Now, Harry pays taxes on the summer beach home as well as income tax on $500,000 notwithstanding the $60,000 he provided Wendy in spousal support. Meanwhile, Wendy only pays income tax on $50,000 while the remaining $60,000 is tax-free.
As you can see, the 2019 changes removed a very useful bargaining chip in the negotiations.
Time will tell precisely how the 2019 changes will impact negotiations surrounding divorce, and how long these laws stay in effect, but the changes are going into effect nonetheless. If you or a loved one are considering a divorce, it is essential that you contact the attorneys at Maples Family Law today. We pride ourselves on our ability to adapt, as well as our ability to assist parties in reaching mutually agreeable terms as it relates to supporting. While the tax benefits have been removed from spousal support, that is not the only item in our toolbox. From all of us at Maples Family Law, we wish you a safe and happy new year.
