Are you going through a divorce? Do you have questions about paying or receiving alimony? If you need any assistance, contact the San Diego Family Law Attorney for an initial consultation. We believe in offering personalized attention that clients want and deserve. Whether you are in San Diego or the surrounding southern California areas, we can help you navigate the divorce process and settle complex family law issues.
Understanding Alimony in California
Also known as spousal support, alimony is financial support of one spouse to the other during and/or after a separation or divorce. The payment is made by the spouse who earns the highest income. It helps the spouse ease into life at least until they become self-supporting.
Alimony is mostly awarded in cases where one spouse gave up their career opportunities to bring up their children or after a lengthy marriage.
There are two types of alimony in California namely:
- Temporary alimony which is paid while the couple is legally married and has a divorce case pending. It is also paid monthly and ends after the divorce case has been concluded. Typically, the court orders it should be paid one half on the 1st and the other half on the 15th of every month, and
- Permanent alimony is paid monthly after the conclusion of the divorce case until the death of either spouse, a court’s further order, or remarriage of the payee. It is also known as post-divorce judgment.
Calculating Temporary Spousal Support
In California, the Alameda and Contra Counties use ‘’Alameda Guideline’’ formula while San Diego County has adopted the ‘’Santa Clara Guideline’’ formula. Generally, the paying party presumptively makes forty percent of their monthly income, reduced by a half of the receiving party’s net monthly income. If child support is an issue that needs to be resolved, alimony is calculated once child support has been calculated.
However, the court is not bound by this standardized formula. It can adjust the amount of alimony payments or consider other factors before making any ruling. Nonetheless, the divorcing couple should not anticipate that the court will set off the standard formula without proper evidence.
It is also worth noting that the last 12 months plays a significant role when calculating temporary alimony income. That period is a fair representation of income specifically when income fluctuates. However, there are no hard and fast rules. The judgment can go longer, especially when the paying party is self-employed. It is unlikely for the court to go longer unless the case has specific facts like when the paying spouse has a new job and their income for the last 12 months is not consistent.
Determining Permanent Alimony in California
After a divorce, the financial implications can turn the couple's lives upside down. That is why California has policies outlined in Family Code Section 4320 that describes whether one should receive or pay alimony or not. There several factors that judges look at when deciding about alimony orders. If you are not in a position to resolve or settle this issue, then you need to hire an experienced attorney who will develop comprehensive evidence about each factor outlined below.
- Ability to continue living by the same standards as they did during the marriage
This factor ensures every partner maintains the standard of living. This is determined by one’s marketable skills aswell as impaired earning capacity. Also, the person’s duties during marriage are considered since the couple may have decided that one spouse would commit to domestic responsibilities after marriage.
- Needs that are based on the standards lived during the marriage
This goes beyond putting food on the table or the bare necessities; it is about the staple things enjoyed during the marriage.
- Contribution to the other spouse’s training or education
One spouse may have contributed to their spouse’s education or training that led to improving their career while the non-student spouse put their own education or training on hold. The court will consider this aspect when determining the spousal support that such a person needs to pay the one who put their education on hold. It is important to note that reimbursement for an education expense during a marriage is an important factor in determining alimony in California rather than an option.
- Ability to pay
Here, the judge looks at the supporting spouse’s current ability to pay alimony. Their past or future income is not considered. Instead, the judge considers their current living standards and the capacity of income.
- The parties assets and debts
These include all assets, separate and community property. The court looks at these properties to see every spouse's net worth. This helps the court decide whether they should order alimony or not and the amount.
- Duration of marriage
This is one of the most crucial factors as far as determining alimony is concerned. There is a myth that one can receive alimony for life. Well, there is no rule. Short-term marriages can get a more extended period of spousal support ordered while long marriages (at least ten years) can get up to five years of spousal support.
Usually, this factor is considered together with other factors as described below:
- The parties’ age and health condition: This factor does not have many outcomes if both spouses are healthy. If one party is old or ill, their earning capacity is reduced. When considering one’s health, the court looks at both physical and psychological impairments that affect one’s ability to get employment opportunities;
- Domestic violence history: Courts don’t give spousal support to perpetrators of domestic violence. Therefore, if there is documented evidence that the spouse seeking alimony has been abusive towards the children or the other spouse, the judge is most likely to reduce the amount of alimony significantly or fail to award it at all. It is worth noting that it is the court’s discretion to adjust the spousal support according to how it finds fit;
- The unfortunate part of this factor is that even if one has been accused wrongly of domestic violence, it will still be taken into consideration;
- Consequences of tax: The immediate effect of tax on either spouse is also put into consideration. Normally, the paying spouse can deduct spousal support, and it is taxable to the receiving party. However, starting in 2019, the federal tax laws changed, specifically, on the issue of tax and alimony. These rules are not in effect yet, but will impact how alimony is determined as far as tax is concerned;
- Relative hardship: This factor seeks to balance hardships to each party. It is also a catch-all factor that the court puts into consideration when the above factors fail to outline the hardship issue;
- Self-support goals: Remember the purpose of alimony in California is to make the supported party independent for a reasonable period of time. Except for lengthy marriages as defined in Section 4336, ‘'a reasonable period of time'' means one half of the marriage's length. However, this does not limit the family court's discretion to order alimony for a greater or lesser period of time, based on other factors discussed in this section;
- Spousal abuse convictions: This is a necessary factor for spousal support reduction or termination. If one party has been convicted of abuse towards the other party within five years of the petition of divorce, the court will not award alimony to the perpetrator. Then again, if the allegedly abusive party provide proof that they are also victims of abuse by the other party, then this factor is not considered;
- The ability of the primary caregiver to engage in lucrative employment without interfering with the interest of the couple’s children;
- Other factors that the family court may deem to be just and equitable. This is another catch-all factor that covers any reasonable things that affect alimony orders. This includes special circumstances like supporting adult children living with disabilities, supporting elderly parents and grandparents, and taking care of minor children living with disabilities.
How Long Does It Take to Get Temporary Alimony?
Like mentioned earlier, temporary alimony means receiving support while the divorce case is pending and before it concludes. Divorce process in California starts with a petition. A request for alimony order can be filed at the same time while serving a petition or later. Once the application for the order has been submitted, the court gives a hearing date that can occur after thirty to ninety days. In some counties, the requesting spouse can reserve the date.
After the request for an order is assigned and served a hearing date, the other parties should file and serve a responsive declaration and then proceed to the hearing stage. The couple can decide to settle the alimony issue before the date of hearing or at the hearing.
At the hearing, the family court will make an alimony order provided the evidence merit one. Temporary alimony order can be amended while the divorce is pending if there are valid legal grounds.
Another thing that can also happen at the hearing is a continuance. A continuance is a postponement of any scheduled court proceeding as a result of:
- Starting a hearing while there is limited time to complete it
- Not being in a position to start a hearing because there are more pressing issues like child custody and domestic violence
- The request of continuance from one party
How Long Does It Take to Get Alimony in California by Judgment?
Generally, an alimony judgment can be settled in either by (a) settlement or (b) a California divorce trial. The former happens when the two parties reach an agreement on the details of their divorce while the latter occurs under a judge's direction. Still, alimony settlement is a restricted judgment in both cases.
So how long will this take? It depends on factors such as
- The length of the marriage
- Marital standard of living together alongside other factors that affect divorce settlement
- Whether one spouse is unemployed or there are differences of opinion about each party’s income
- Other issues that cause the divorce case to take longer to conclude
If there are few or no disputes, a divorce case and alimony issue can be settled within six months. On the other hand, if the case is complicated or has many differences, getting alimony judgment can take more than six months or a year.
Can Alimony be Modified?
Alimony modification applies when there has been a notable change of situations that justify an alteration after the judgment. This situation is handled in the same way as the pre-divorce process. The party requesting a modification files a request for order and then the court sets the hearing date.
Understanding the Difference Between Child Support and Spousal Support in California
Child support and spousal support serve different purposes and are awarded separately to the primary caregiver after a divorce case. To get a clear picture, let's assume a father pays a mother $ 2000 for child support for three children and $ 3000 monthly in alimony. The child support is for taking care of the couple's children while the $3000 is for maintenance of the marital living standards.
Regardless of how the $3000 was determined, the truth is that the alimony would be more if the husband in the example has no child support to pay. This is because child support is the priority and spousal support is determined on what is left.
If You Have Stopped Paying Spousal Support
If you stop paying alimony, you could face severe legal actions. The judge can order a wage garnishment where a percentage of your wages is diverted to your ex-spouse. Moreover, the court can levy your bank account and divert your tax refunds.
So what can your ex-spouse do if they are not receiving the alimony ordered by the family court? If your ex is not paying you spousal support, they can return to the family court accompanied by a qualified family attorney. They, together with their lawyer, will be required to offer evidence that their ex-spouse has not been making payment, has not paid in full or on time.
Tips on How to Avoid Paying Huge Alimony Orders in California
When applied the wrong way, alimony can be a significant burden on the spouse paying it. Fortunately, there are legal ways you can use to reduce the amount you pay:
Avoiding alimony through settlement negotiations
Qualified representation should come first. A qualified family lawyer is a must. That means the lawyer should be experienced in family law and limit their practice to divorce issues. This will help in gauging all options and negotiating the best terms for you.
Making sure the spousal support is not indefinite
Stay diligent on how long you will pay alimony. Whether you were married for a long time or not, the termination date of paying for alimony should be written into your divorce agreement. As a rule, it should be half the length of your marriage. If there is no specific end date, then you may end up paying alimony much longer.
Spousal support should be in line with martial living standards
One of the most common mistakes made by the spouse paying alimony is basing support on their income while the income is not consistent with martial living standards. The spouse receiving alimony is not entitled to support based on salary increment after separation.
This means that the paying spouse should be wise before agreeing to a court order. That way, alimony will be reasonable.
How to avoid paying alimony when the payee refuses to work
If the party requesting for alimony is in a position to be employed but refuses to work or is willingly underemployed, the other party can request for a vocational examination. Once ordered, a professional examiner will evaluate the spouse's earning capacity and job opportunity and then let the court know the results. If the court agrees with the assessment, it may impute income to the spouse.
How to avoid paying spousal support when the supported spouse does not have a need
You may be wondering how one can prove that their spouse does not have a need. There are numerous ways to deal with this and the most common one deals with independent property separate from marital property. For instance, if the spouse seeking alimony has an inheritance or has access to money for their expenses, then that spouse will receive a lesser amount of spousal support.
Avoid paying alimony when the high-earner party has child custody
The reasoning behind this tip is obvious. If one spouse has sole custody of the couple’s child or children, they are responsible for the children’s daily care and payment of expenses. This, therefore, may affect the spouse’s ability to pay spousal support.
Finding Family Law Attorney Near Me
Alimony can be complicated, and you can significantly increase chances of a positive outcome by hiring a legal representative from San Diego Family Law Attorney. Contact our family law attorney today via 619-610-7425. Our family law attorneys are ready to meet and have a consultation with you.
