california earnings assignment order for spousal support

How to Enforce Spousal Support in California

• February 5, 2021February 1, 2021
• by Briana White

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: 

• A Findings and Order After Hearing ( Form FL-340 ); 
• Any of the required attachments; and,
• 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.

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How Spousal or Partner Support Starts

In order for spousal or partner support to be legally established and officially start, there must be a court case. A spouse or domestic partner can ask the judge to make a spousal or partner support order as part of 1 of these types of cases: Divorce, legal separation, or annulment; or A domestic violence restraining order. You can ask for spousal or partner support to be paid while your case is going on. This is called a “temporary spousal support order” or a “temporary partner support order.” Support can also be ordered once the divorce or legal separation becomes final, as part of the final divorce or separation judgment. When it is ordered once the case becomes final, it is called “permanent (or long-term) spousal or partner support.” Find out how to ask for spousal or partner support in one of these types of court cases.

Calculating Spousal or Partner Support

The judge will not use a formula to figure out how much spousal or partner support to order at the end of your case. When the judge makes his or her final spousal or partner support order, the judge must consider the factors in California Family Code section 4320 .

These factors include:

• The length of the marriage or domestic partnership;
• What each person needs based on the standard of living they had during the marriage or domestic partnership;
• What each person pays or can pay (including earnings and earning capacity) to keep the standard of living they had during the marriage or domestic partnership;
• Whether having a job would make it too hard to take care of the children;
• The age and health of both people;
• Debts and property;
• Whether 1 spouse or domestic partner helped the other get an education, training, career, or professional license;
• Whether there was domestic violence in the marriage or domestic partnership;
• Whether 1 spouse’s, or domestic partner’s, career was affected by unemployment or by taking care of the children or home; and
• The tax impact of spousal support (note: federal and state tax laws have not been changed to recognize domestic partnerships).

The spousal or partner support order then becomes part of your final divorce or legal separation judgment.

Understanding the Factors the Judge Must Consider

Earning capacity and the standard of living during the marriage or partnership A judge must consider what each spouse or partner can earn to keep a standard of living close to what they each had during the marriage or partnership. To do this, the judge looks at the: Marketable skills of the spouse or partner getting support; Job market for those skills; Time and expense the spouse or partner who gets support will need to get the education or training to develop more marketable skills or to get a job; Extent that the earning capacity (the ability to earn income) of the spouse or partner who gets support was impaired by periods of unemployment during the marriage/partnership when he or she was devoted to domestic duties. Length of the marriage or domestic partnership The duration of a permanent or long-term spousal or partner support order is closely related to the length of the marriage or domestic partnership. The goal of spousal or partner support is that the spouse or partner getting support will be able to support himself or herself within a reasonable period of time. The law says that, in general, a “reasonable period of time” may be one-half the length of the marriage/partnership. BUT the law also says that the judge has discretion (power) to make a different decision given the specific circumstances of the case. There is an important exception. When a marriage or partnership is considered a “long-term” marriage or partnership (usually 10 years or more), the judge may not set an end date to the spousal or partner support. The length of the marriage or domestic partnership is generally from the date of the marriage to the date of the separation. Because the date of separation can have very important consequences when it comes to deciding spousal or partner support, the parties in a divorce or separation case may not be able to agree on a date of separation, and the judge may have to decide what that date will be. Also, the judge can take into account the periods of separation during the marriage/partnership in deciding if the marriage/partnership is of long duration. Domestic violence and spousal or partner support When deciding spousal or partner support, the judge must take into account documented evidence of any history of domestic violence between the parties. When the spouse or partner that would pay the support is the abusive person, the judge will consider any emotional distress resulting from the violence suffered by the spouse or partner to be supported. The judge will also consider any history of violence at the hands of the spouse or partner to be supported against the person that would pay the support. And there is a rebuttable presumption against giving spousal or partner support to an abusive spouse or partner who has a criminal conviction for domestic violence against the other spouse or partner.

Falling Behind in Spousal or Partner Support Payments

If you have to pay spousal or partner support and fall behind in your payments, you must pay 10% interest per year on the balance due. Interest charges are added by law, and the judge cannot stop them.

If you owe arrears (past-due spousal or partner support), it is possible that your court order, or wage assignment (garnishment) if there is one, will include an amount over the monthly spousal or partner support. This amount goes toward paying off your arrears, and it is often called a “liquidation amount.” But even if you are paying off your arrears in installments, interest continues to be added to your balance.

Not paying the spousal or partner support the court ordered you to pay can have very serious consequences. If the court finds that you have the ability to pay support but are willfully not paying it, the court can decide that you are “in contempt of court.” Being in contempt of court can be very serious because you can be sent to jail. This enforcement tool is generally used only when all others have failed.

If you are the spouse or partner getting support, you may be able to get help collecting on your support order. If the local child support agency (LCSA) is currently helping you collect (enforce) a child support order for a child you have with your spouse or domestic partner, the LCSA can help you collect (enforce) the spousal/partner support order along with the child support order. If the LCSA has not helped you yet but you do have a child support order as well as a spousal/partner support order, you can ask them to open an enforcement case on your behalf and help you collect both types of support.

Learn more about the local child support agency and find the local child support agency in your county .

Changing Spousal or Partner Support

Depending on the situation, either spouse or domestic partner might need to change the amount of spousal or partner support that is paid. To ask for a change in the support amount, there needs to be a “change in circumstances.” This means something significant has changed since the spousal or partner support order was made. Maybe the spouse or partner that was getting support no longer needs it; or the person paying support has had a significant drop in income and can no longer afford the amount of support. Sometimes, the spouse/partner getting support is not making a good faith effort to become self-supporting, so the paying spouse/partner can ask the court to end or change the support order based on this. Get more information and step-by-step instructions on changing a spousal or partner support order . And take a look at Spousal or Partner Support Declaration Attachment ( Form FL-157 ). This form can be used to ask the court for spousal or partner support, or to ask for a change in the order, and it can help you see what factors the judge will consider when deciding whether to change the amount of support. IMPORTANT! If you are the person paying spousal or partner support, you will still owe the full amount of support in your current court order until you get the order changed — even if your situation has changed. So, for example, if you lose your job today but you do not change your spousal or partner support order until 3 months from now, you will still owe spousal or partner support from today until 3 months from now, even though you were not working. Also, if you owe that amount but are unable to pay it, you will owe interest (at the rate of 10% per year) on any unpaid balance.

Ending Spousal or Partner Support

Spousal and domestic partner support usually ends when: A court order or judgment says it ends; One of the spouses or domestic partners dies; or The person getting the support remarries or registers a new domestic partnership.

Spousal/Partner Support and Taxes

Orders or judgments for spousal support executed before december 31, 2018.

A person paying spousal support under a divorce or separation order or judgment executed before December 31, 2018, can deduct the payment when filing federal or state income tax forms. The party receiving support pays federal and state income tax on those payments.

Changes to this spousal support order or judgment that are made after December 31, 2018, are treated the same way for tax purposes.  However, parties can agree to follow the new federal law that makes spousal support non-deductible to the person paying and not taxable to the person who receives support. The modified judgment must include a clear statement that the new federal tax law applies to the spousal support payments.

Orders or judgments for spousal support executed after December 31, 2018

Federal income taxes: The federal government has changed the tax laws about spousal support for divorce or separation orders and judgments. After December 31, 2018, the person paying spousal support cannot deduct the payment on federal income tax forms.

The person receiving support will not have to declare the support payments as income on federal income tax forms.

State Income taxes:  California tax laws are not the same as federal tax laws about spousal support. Unless the state tax laws are changed, spousal support payments will continue to be tax deductible for the person who pays and taxable as income to the person who receives spousal support after December 31, 2018.

Domestic partner support

Tax law is more complicated when it comes to domestic partner support.  In California, support payments between registered domestic partners are treated the same as spousal support.

Federal tax law mentions spousal support payments, not partner support. It is important to talk with a lawyer or accountant who is knowledgeable in this area and about income, property, and other taxes.

Spousal or Partner Support Agreements

Writing up a spousal or partner support agreement Spouses or domestic partners can agree to a spousal or partner support amount, but it will not become a court order until the judge accepts your agreement and signs it as an order.

The family law facilitator in your court can help you work out a spousal or partner support agreement and write it up.

To write up a spousal or partner support agreement:

• Ask the family law facilitator in your court for help understanding spousal or partner support. He or she may also be able to help you mediate with your spouse or partner and may even write up your agreement for you.
• Also, take a look at Spousal or Partner Support Declaration Attachment ( Form FL-157 ). This form can be used to ask the court for spousal or partner support, or to ask for a change in the order, and it can help you see what factors the law considers in determining spousal or partner support.
• An amount (or no amount, if you agree that no one will pay spousal/partner support to the other);
• The duration of the support payments — how long the payments will last; and
• How the payments will be made — directly between the 2 of you or by wage garnishment (an automatic deduction from the paying person’s paychecks).
• Read more about custody and visitation agreements .
• Read more about child support agreements .

Make sure you use the right case number for your agreement, which will be the case number of your divorce or legal separation case.

• Ask the family law facilitator in your court if you need help writing up your agreement. Or, if you wrote it up on your own, have the facilitator review it to make sure you did it correctly.
• If you are agreeing to have the spousal or partner support paid by wage garnishment, also turn in an Earnings Assignment Order for Spousal or Partner Support ( Form FL-435 ).
• Also file the Earnings Assignment Order for Spousal or Partner Support ( Form FL-435 ) if you turned in one.

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Earnings Assignments in California

The decision to file for divorce is rarely an easy one. However, once your judge signs the final divorce decree, the most difficult aspects of the divorce process should be behind you. 

In most cases, the judge in charge of a divorce case will file an earnings assignment order to make sure that spousal support payments are made on time. In this guide, we take a closer look at earnings assignments and when they are used.

What is an earnings assignment in California?

An earnings assignment refers to income withheld by an employer to pay spousal support the employee owes. If you or your ex-spouse owe spousal support , a California judge will likely make an earnings assignment order.

The order takes effect once a Proof of Service form has been filed. This form must be served to your ex-spouse’s employer. The employer will then understand that they must withhold a certain amount of your pay for spousal support.

If you are the support recipient, bear in mind that you or your lawyer must fill out the earnings assignment order form. (Find it here .) As long as you correctly and accurately complete the form, you can expect the order to be verified in less than two weeks.

How is earnings assignment money typically withheld and received?

The process of earnings assignment withholding and receipt is fairly straightforward.

Once an ex-spouse’s employer receives the order, they have 10 days to begin deducting the necessary funds. This money will be taken directly from the ex’s earnings.

The money will be allocated directly to spousal support payments. Payments may be made monthly or quarterly, depending on the guidelines of the divorce decree.

What's after divorce? 

Make sure you've got everything covered with our free checklist., common questions about earnings assignments, can i choose to receive payments directly from my spouse instead.

If your ex-spouse is employed, their employer will send spousal support payments to you once enough money is collected. However, this isn’t possible if your ex-spouse works contract jobs or is self-employed. If you find yourself in this situation, your ex-spouse will likely be ordered by the judge to pay you directly.

Can I choose to make payments directly to my spouse instead of having money withheld?

In the event you are tasked with paying spousal support to your ex-spouse, you can ask your ex to agree to receive payments directly from you. With this agreement, you can bypass the need for an earnings assignment.

Note, however, that your ex-spouse could still obtain an earnings assignment order. They could request the order be put on hold “just in case.” In this scenario, the order would only go into effect if you start missing payments.

What can I do if my ex isn’t paying spousal support in California?

As touched upon previously, you can request an earnings assignment order from the court if your ex-spouse fails to pay the spousal support they owe. 

Review and follow the steps below:

• Fill out all required forms.
• Make copies of these forms.
• Collect signed forms from the judge.
• File the signed forms, if necessary.
• Send the earnings assignment order directly to your ex-spouse’s employer.
• Send the order to your ex-spouse.
• Fill out and file the Proof of Service document.

Nearly every judge files an earning assignment order when a divorce decree is made. This simplifies the process of obtaining spousal support in California.

While it’s possible to draw up an agreement for your ex to send payments directly to you, an earnings assignment order simplifies and automates the process. 

If you need help understanding the earnings assignment form and what it entails, speak with your Hello Divorce account coordinator (if you are a paid member), or contact Hello Divorce for a free 15-minute call to learn about options and next steps.

Related articles.

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May 26, 2016

Options for Long-Term Spousal Support in California

July 05, 2022

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Earnings Assignment Order For Spousal Or Partner Support (Family Law) Form. This is a California form and can be use in Family Law - Enforcement Judicial Council.

Tags: Earnings Assignment Order For Spousal Or Partner Support (Family Law), FL-435, California Judicial Council, Family Law - Enforcement

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Family Law Forms, California FL 435 – Earnings Assignment Order for Spousal or Partner Support

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Enforcing Orders of Support

There are several options for enforcing child and spousal support orders, and child custody rulings.

A contempt charge is applied to a party that doesn’t comply with an order despite full awareness of its existence and the party’s capability to meet its requirements. In order to find someone in contempt, the charge must be proven “beyond a reasonable doubt,” which puts the burden of proof on the accusing party. Violations, such as failing to pay child support or abide by custody orders, are two examples that could lead to a contempt charge. Then penalties include jail time and fines.

Wage Assignment Order

California law requires that courts issue an earnings assignment for all support orders. This means the payor spouse’s employer must directly pay support to its recipient. This is mandatory for courts making or modifying a support order [Ca Fam Sec.5230(a)].

The one exception is when the parties agree on support. If the responsible party fails to make regular payments, then the Wage Assignment Order requires the employer pay the support out of the payor’s paycheck.

Writ of Execution

This type of writ enables a person to request the court order the liquidation of an individual’s assets and have the funds transferred to the owed party. A writ of seizure can be executed against property as well as bank and deposit accounts in order to satisfy past-due support payments.

Motion for Determination of Arrearages

A motion for determination of arrearages comes into play when there is a dispute over the amount of support one party owes another. If the amount is significant, this motion can lead to a court hearing intended to discover the total amount of support in question. Both sides of the dispute can petition for this type of hearing. A district attorney can also use a motion for determination of arrearages when a spouse disputes the back support they owe. The total amount of calculated support can include a significant rate of 10% per year.

Child Support Security Account/Electronic Funds Transfer

In some cases, spouses who are required to provide child support can be asked to deposit as much as a year’s worth of payments into an interest-bearing account held in trust for the child. Typically this is used to ensure continuous support from individuals that move between employers or are self-employed. The account acts as a guaranteed child support payment. If necessary, disbursements from this account will cover any payments that are overdue by 10 days or more [California Family Code Sections 4560, 4561, 4570] .

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What Is Form FL-435?

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• Download Form FL-435 PDF Download Form FL-435 PDF

Form FL-435 Earnings Assignment Order for Spousal or Partner Support - California

• United States Legal Forms
• California Legal Forms
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• California Superior Court

This is a legal form that was released by the California Superior Court - a government authority operating within California. As of today, no separate filing guidelines for the form are provided by the issuing department.

Q: What is Form FL-435?A: Form FL-435 is the Earnings Assignment Order for Spousal or Partner Support in California.

Q: What is the purpose of Form FL-435?A: The purpose of Form FL-435 is to establish an order to deduct spousal or partner support directly from an individual's wages or earnings.

Q: Who can use Form FL-435?A: Form FL-435 can be used by individuals in California who need to enforce a spousal or partner support order.

Q: What information is required on Form FL-435?A: Form FL-435 requires information about the employer, employee, and the support order, including the amount to be deducted.

Q: What do I need to do after completing Form FL-435?A: After completing Form FL-435, you must file it with the court and serve a copy on the employer.

Q: What happens once Form FL-435 is filed?A: Once Form FL-435 is filed and served, the employer will be directed to deduct the specified amount for spousal or partner support from the employee's wages or earnings.

Q: Can Form FL-435 be modified or terminated?A: Yes, Form FL-435 can be modified or terminated if there is a change in circumstances or if the spousal or partner support order is modified or terminated by the court.

Form Details:

• Released on January 1, 2005;
• The latest edition provided by the California Superior Court;
• Easy to use and ready to print;
• Quick to customize;
• Compatible with most PDF-viewing applications;
• Fill out the form in our online filing application .

Download a fillable version of Form FL-435 by clicking the link below {class="scroll_to"} or browse more documents and templates provided by the California Superior Court .

Download Form FL-435 Earnings Assignment Order for Spousal or Partner Support - California

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