I received legal papers about spousal support. What can I do?
If you have been “served” spousal support papers (meaning that someone has given you, or mailed you legal papers telling you that they have filed papers that ask the Family Court to issue an order about spousal or partner support), you should respond if you want to have input into the judge’s final decision.
To respond, you must file a “Responsive Declaration to Request for Order” (Form FL-320) and your “Income and Expense Declaration” (Form FL-150). Once you have filled out the forms, you could ask your Family Law Facilitator to review them before filing with the court clerk.
After you have filed your forms, you must serve your spouse/partner with your response and your Form FL-320 at least 9 days before the hearing (which is scheduled at the time you file your response with the court clerk).
I am currently incarcerated. Do my spousal support payments automatically stop while I am in prison or jail?
Your spousal support payments do not automatically stop while you are incarcerated, but you can request that your order be paused or reduced if you are not longer able to pay. For steps on how to change an order, see Appendix M, PG. 831.
If you do not ask the family court judge to reduce your spousal support order, then your missed payments plus interest will add up while you are incarcerated, and you must pay this after you are released.
To reduce or pause spousal/partner support payments, you should either (1) if no children are involved, contact your local Family Law/Self-Help Facilitator OR (2) if children are involved, contact your local child support agency (LCSA). For help to find either your family law/self-help facilitator or LSCA, see Appendix A, PG. 797.
Do my spousal support payments automatically begin when I am released from prison?
Because your spousal support payments do not automatically stop while you are incarcerated, then your release will not cause the payments to automatically begin. Follow the court order for your spousal support payments for all relevant dates and amounts owed.
How are spousal support payments made?
Most spousal support is paid through “earning assignments,” also known as “wage garnishments.” This is a portion of money that is removed from your paycheck BEFORE you get paid. In the same way that many taxes are taken out, an “earning assignment” or wage garnishment is removed directly from your paycheck and is considered payment for your court spousal order (and/or child support order).[2594]
- If you also have a child support earnings assignment in place, child support will be taken from your check first. Then, if you also owe spousal or partner support that will be taken from your check.
- If the local child support agency (LCSA) is involved in your case, they will automatically issue the earnings assignment and begin collecting from your paycheck through your employer.
- If the LCSA is not involved in your case, your former spouse or domestic partner, or the court itself, will prepare an “earnings assignment” and send it to your employer.
- 2594
Cal. Civ. Proc. § 706.010. ↑
How do payments made by earnings assignment work?
- When the court orders “wage garnishments,” your employer receives court papers that will tell him or her the amount of money that should be taken out (withheld) from your check each pay period. Once your employer receives this paperwork, he or she has just a few days to start taking the money out from your next paycheck.[2595]
Once this money is taken from your paycheck (or “withheld), your employer will send your money based on the type of order was issued. If your order was for:
- …spousal or partner support only, your employer will forward the payments to your spouse or partner directly.
- …child support AND the local child support agency (LCSA) is involved, your employer will take the amount that was court ordered and will send it directly to the LSCA.
- …child support and spousal support and the local child support agency (LCSA) is NOT involved, the money will be sent to the California State Disbursement Unit (SDU).[2596]
If you have any questions about the SDU, contact the SDU directly at 1-866-901-3212 or visit the California State Disbursement Unit's website listed on Appendix A, PG. 797.
- 2595
Judicial Council of Cal., Paying a Spousal/Partner Support Order, http://www.courts.ca.gov/1251.htm. ↑
- 2596
Judicial Council of Cal., Paying a Spousal/Partner Support Order, http://www.courts.ca.gov/1251.htm. ↑
Can I change the amount of spousal support I owE (while i am incarcerated or after my release)?
After a judge makes a spousal or partner support order, one or both spouses or domestic partners may need to change the order. This may happen because you or your former spouse’s job changed, you or your former spouse does not need support any more, or you would like to make changes because the spouse that is paying cannot afford to pay the ordered amount. When deciding whether to change the order, a judge will look to determine if there is are “changes in circumstances.”
IMPORTANT! Unless the judge signs a new court order, the existing spousal or partner support amount and order will not be changed. So, to protect yourself, even if you have a verbal agreement with your spouse/domestic partner to change the spousal or partner support amount, put it in writing and have a judge sign it. That way you have a current spousal or partner support order that reflects the current amount.
!
IMMEDIATELY! It takes time for the courts to process paperwork and/or to schedule a hearing before a judge to change court orders and you do not want to get into trouble if your circumstances have changed and now it is difficult to pay. Remember, failure to pay because you do not want to pay may result in the court stating you are in “contempt of court” which may lead to jail time.
For steps on how to change your spousal support court order, see Appendix M, PG. 831.
I am formerly incarcerated and owe money for past, overdue spousal support payments (“arrears”). How can I change these arrears?
You cannot change these arrears.
Can I get rid of my past, over due spousal support payments?
Unfortunately, although it is possible to modify the amount of spousal support that you pay and end spousal support all together, these changes cannot be made retroactively. There is no way to get rid of past over due spousal support payments.
I receive public benefits. Can a portion of my public benefits be taken to pay for spousal support?
It depends on the type of benefits you are receiving. Federal benefits can be garnished to provide spousal support.[2597] Under California law, up to 25% of unemployment compensation benefits and state disability benefits can also be withheld to pay spousal or child support[2598]. Other state benefits such as welfare cannot be withheld. An application has to be made to the court giving you an opportunity to contest any such garnishments before they can take effect.