Family Law

Message from the Family Law Section Chair

THREE R’s (Ruling, Remain, Register)

For this month’s Chair Message, I present three completely unconnected messages with two shared traits. First, they are in my humble opinion all equally important and worthy of your consideration. Second, I could work in the letter R with all three. So, this month’s Chair Message is officially brought to you by the letter R.

Wait For A Ruling Regarding Spousal Support

We are now out of the optional phase of PUBLIC LAW 115–97—DEC. 22, 2017 131 STAT. 2089, aka the Tax Cuts and Jobs Act of 2017. As we already know, any new spousal support order made from January 1, 2019, forward is non-deductible to the payor and non-taxable to the recipient. However, Section 11051(c) of the Act holds out the prospect of orders made after January 1 still being deductible if they modify an order made before January 1, 2019. That section, titled “Effective Date” states that “the amendments made by this section shall apply to … “(2) any divorce or separation instrument (as so defined) executed on or before [December 31, 2018] and modified after such date if the modification expressly provides that the amendments made by this section apply to such modification.” And therein lies my concern.

I am confident a temporary spousal support order made before January 1, 2019 can be modified and remain deductible. I am also confident a permanent spousal support order made before January 1, 2019 can be modified and remain deductible. But what about a permanent spousal support order made now that is replacing a temporary spousal support order made before January 1, 2019?

I think a logical argument could be made that the permanent order is not modifying the temporary order, but instead replacing the temporary order.In California, the two types of orders are established by two entirely different code sections (Cal. Fam. Code Section 3600 for temporary spousal orders, Cal. Fam. Code Section 4320 for permanent spousal support orders). They have two separate and distinct objectives (preserving the status quo for temporary spousal support vs. achieving the goal of self-support within a reasonable period of time). And they are calculated in entirely different manners—in fact the method generally used to calculate temporary support (i.e. a support calculator) is specifically prohibited when determining permanent spousal support. See Marriage of Schulze (1997) 60 Cal. App. 4th 519, 526-527.

Are you really modifying a temporary order when a permanent order is made? I am not confident you are. As a result, I am advising my payor clients to wait for an IRS ruling before agreeing to a permanent, “deductible” spousal support order which is replacing a previous deductible temporary order. Because, I do not see a clean and easy fix if the IRS determines that a permanent spousal support order is not a “modification” of a temporary spousal support order.

Remain in the Section

Since it is that time of year we have to renew our Bar Membership, this is also the time for you to remain in the Family Law Section. While I am biased, I think the value received from Section membership is well worth the $95 fee. For that paltry sum, you receive:

  • Four issues of the Family Law News, with in depth, timely and insightful articles.
  • At least ten issues of this Family Law News Monthly, with important updates regarding the practice of family law in California, family law case summaries and news of events and activities of benefit to family law attorneys.
  • Regular notifications regarding the Family Law Section’s educational offerings, including webinars and our live education events.

Which is a nice segue to my third R…

Register for Minor’s Counsel Training

Registration is still open for the 2019 San Luis Obispo County Minor’s Counsel Training, which is being sponsored this year by the Family Law Section. We have an incredible panel of speakers this year: the Hon. Thomas Trent Lewis, the Hon. Erin M. Childs, trauma expert Mary Kelly Persyn, Fresno County Superior Court Family Court Services Director Cheryl Scott, the always engaging and entertaining Gregory Gillett and myself. The program offers all 12 hours of education required to begin acting as minor’s counsel, with 8 hours of new content to meet the annual requirements for attorneys who are continuing as minor’s counsel.And you get to spend the weekend in Pismo Beach, with a complimentary lunch on Saturday and complimentary breakfast on Sunday. The fee is $300 for registration before February 1, 2019, $350 thereafter.

Helpful links for the program are:

We have only 150 spaces available, and I expect a sellout this year based on the incredible reviews from last year’s event, such as this one:

I have attended other conferences for minor’s counsel and this one is the crown jewel of conferences. Excellent speakers, topics and materials. Thank you!!!

I therefore encourage you to register soon if you want to attend this year’s training.

Omne Trium Perfectum

Stephen D. Hamilton
Chair, Family Law Executive Committee of the 
California Lawyers Association

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