Differences in Spousal Support Income for Public Vs Non-Public Employees

spousal support income

Calculating spousal support is one of the most contentious aspects of divorce proceedings. Many factors beyond salary or hourly wages go into this calculation, including various employment benefits. In many cases, retirement plans, pensions, and 401ks can be worth nearly as much or even more than other assets acquired during the course of marriage.

How Do Support Payments Differ for Public and Non-Public Employees?

Public employees who work for government agencies or public schools and universities receive pensions as part of their retirement plans, while non-public employees typically set up and contribute to 401ks in order to accumulate money for retirement.

In California, any accumulation in these accounts during the course of marriage is considered community property and can be divided between spouses after divorce.

However, these divisions also affect the amount of spousal support income available after the divorce.

  • Public employees
    Spousal support owed by public employees is calculated after their pension benefits are deducted. Pension plans are divided one of two ways:

    • Reservation of jurisdiction
      Reservation of jurisdiction is a court-ordered process that requires one party to pay a percentage of his or her pension checks to the former spouse. The amount owed from each check is calculated by dividing the number of years the marriage lasted by the total number of the years the public employee spouse participated in the pension plan.
    • Cash-out
      Cash-out awards occur after one party obtains an actuarial evaluation and a present value of the community share of the pension plan. This allows the public employee spouse to retain sole possession of the pension plan while dividing other community assets of equal value with the other party.
  • Non-public employees
    Spousal support owed by non-public employees is calculated before the deduction of 401k assets. 401ks are divided via a three-step process:

    • The divorce decree must order the division of assets in a 401k
    • A legal document called a qualified domestic relations order—or QDRO—must be drafted
    • The family court judge must approve and sign the QDRO

Because the amount of spousal support owed by non-public employees is calculated before assets tied up in a 401k are factored into the division of assets, it’s important to consult with an experienced California divorce attorney and make him or her aware of all community property, including retirement plans and other assets, before divorce proceedings begin and property is divided.