Under California law, when a couple gets a legal separation or a divorce, one of them may be entitled to a court-ordered financial support, also referred to as alimony. The order is referred to as spousal support when a marriage ends in divorce or legal separation and partner support when a when a registered domestic partnership ends in divorce or legal separation. These orders aim at ensuring that each spouse or partner leaves the marriage or the partnership in the same standard of living as they had established in the relationship. This is achieved by having one spouse or partner send payments to the other for a set period of time. Alimony is different from child support in that, child support is provided based on simple mathematical calculations whereas the basis of child support is very much the decision of the judge.
You may find it challenging to understand the laws surrounding spousal and partner support, but we make it much easier for you. We understand that legal separation and divorce are life-changing events; they affect your family, friends, living situations, personal life, and your finances. It is imperative that you look at all your options, including retaining a qualified and experienced family lawyer.
Types of Alimony
Spousal support only begins when there is a family law court case that’s opened. A spouse or partner can request an alimony order during a divorce, legal separation, domestic violence restraining orders, and annulments. There are different kind of alimony that one can request during family law court cases and they include:
- Rehabilitative Alimony: this is a financial support provided to the receiving spouse for a short period of time to allow he/she to get adjusted financially. This means that the spouse is given time and the support necessary to “rehabilitate” and become completely self-supporting.
- Permanent Alimony: this type of support is paid until either the remarriage of the receiving spouse or the death of the paying spouse.
- Temporary Alimony: this financial support is also referred to as a pendent lite support. It is often awarded during the divorce process as the parties await the final judgment. This order becomes paramount given that divorce proceedings can take a considerable amount of time before the final decree is issued and a permanent support order is made
- Lump sum: A spouse may choose to pay the alimony at once instead of periodic payments. Before agreeing to the lump sum payment, you should first consult with a CPA and tax attorney concerning the impacts of lump sum alimony.
Basics of calculating spousal support
Calculating spousal support is one of the complex activities in an alimony order. The temporal partner or spousal supports are calculated using a formula that could vary from one county to the other. The temporal support order is issued within a short period and it’s important that you contact a family attorney so that they can explain how these orders are carried out in your county. For the long-term or permanent alimony, there is no distinct formula for calculating it. Judges take into account certain factors which are based on the California Family Code Section 4320. Such factors include:
- The capacity of earnings of the partners and if the spouses can retain the same level of living that they had created during their marriage or partnership
- The ability of the spouse to pay alimony or support
- The contribution of either of the party towards licensing, career, training or education of the other partner among other issues that have given the other partner a potential to be successful after the separation
- The impact of the contribution of the partners to the marriage or children toward their ability to attain employment
- Marketable skills that the spouse who will receive support has
- History of abuse or domestic violence
- Age and the health of either of the partners
- How children will influence a party’s ability to obtain employment
- The length of the partnership or marriage
- The assets and financial obligations of both parties
- Needs of either of the party and the created living standard
Post Separation Income and Alimony
In determining the marital lifestyle, income made after the separation will not be taken into consideration by the court. This is because the lifestyle that the spouses enjoyed has to be based on the marriage. Therefore, if in the post-separation period, one spouse earns significantly more maybe because of certain changes and circumstances, the income will not be taken into consideration. However, this may not be the case if the increase in income was directly or indirectly related to sacrifices made during the marriage. The supported spouse can argue that the additional income was as a result of the efforts made during the marriage and should also be used in determining the alimony. Also, the amount of spousal support cannot be raised if the paying spouse starts earning significantly more after the dissolution of marriage. However, the amount could either be reduced or terminated if the paying spouse experiences financial problems brought about by health concerns or loss of employment.
How to change or terminate a spousal support order
One has the potential to alter or terminate spousal support even after it has been issued. This is referred to as modification and the California law allows for spouses to request for modification. A modification can, however, be obtained only if the partner can prove that there has been a change in the circumstances that affect their capacity to adhere to the order. Such circumstances may include loss of a job or the other partner gains employment.
If you feel the need to change the existent support order, it’s advisable that you contact your attorney. A spousal support order in California can only be changed if a modification is issued and it cannot be changed retroactively. Even if you feel that you may attain a job you have other issues that could be affecting you and you could have difficulties dealing with these issues. The process of modifying or terminating a spousal order is similar to that of terminating it. Spousal support order will end if:
- One of the spouses dies
- If the court orders that the support payment end
- If the receiving partner remarries or cohabits with another adult
- Parties resume marital relations
An attorney can help you modify or terminate an alimony by obtaining a court order from the judge if you have convincing reasons for it.
When you fall behind spousal support payments
If the court issues spousal support orders, both parties are expected to heed to the terms of the order, failure to which they’ll have to face consequences. The reason why a court order is issued is so that chances of one party forfeiting payment may be eliminated and minimized. One is thus required to follow the order that has been issued and abide by its terms until its termination date or until it is modified. In California, delaying on alimony could be serious given that there is a 10 percent interest charge on the unpaid amounts and these fines cannot be reversed even by a judge. The interest will continue to be added even when you make payment on your balances. The interests will be offset once the entire balance has been settled. In addition to interests, one may be held in contempt of court which could lead to either fines or jail time.
If your partner falls behind on payments, you may request that there be established a wage banishment so that your payments may be deducted before they receive their paycheck. This will ensure that your payments appear on time. Contacting an attorney is always an advisable option if you need help collecting an unpaid payment from your partner. Also, you can contact your local child support agency for more information and assistance. There exist limits on the number of filings that a party can make on matters such as contempt of court and it’s imperative that you act quickly and keep accurate records. An attorney can assist in outlining the laws and the ensuring that your pleas are in order and with enough bases.
The Gender Issue in Spousal or Partner Support
Past spousal trends had it that the courts were more likely to award alimony to wives than to husbands. This myth still exists and most people going through a divorce or legal separation hold on to it. But in the contemporary world, women continue to earn gainful employment that’s significantly higher than what their husbands get. Also, there is an increase in cases where fathers get the primary custody of their children. This means that when assessing spousal support, the courts do not take the issue of gender into consideration. Instead, their focus is mainly based on how one spouse assisted the other in earning an employment and what measures can be put in place to ensure that the receiving spouse becomes self-supporting.
Child Support and Alimony
Child support and spousal support are completely unrelated given that their needs are totally different. In making decisions on child support, the court considers the needs of the child. Conversely, the court will consider the needs of the current former or soon-to-be spouse when deciding on alimony. Since the two are not correlated, spousal support order will still be granted and the presence of a child support order will not cause any reduction in spousal payments.
Do All California Divorces Include Spousal Support?
Most people are led by the misconception that one spouse will always receive alimony in a divorce. In fact, it is difficult to determine how often spousal support order given by the court is a part of divorce given that most divorces are not contested in court. So long as the spouses agree and follow all the legal requirements, it’s likely that the court will uphold the agreement, even if it involves spousal support payments being paid by the lower-earning spouse. That said, only a small percentage of divorcing spouses receive spousal support.
Is There a Ten-Year Rule in California?
There is a common misconception regarding a ten-year rule in California that automatically awards permanent spousal support to spouses who have been married for at least ten years. This is not the case. However, a marriage which has lasted at least ten years is an important milestone which can affect the court’s decision on whether the issue of spousal support can be revisited at some time in the future. Also, in California, spousal support can last half the length of marriage even if it has lasted for less than ten years. Generally, the duration of the alimony is not set, instead, the focus is inclined towards having the paying spouse prove that it’s not necessary for the support to be there at some time in the future. While the issue of the duration of spousal support is dependent upon the decision of the court, the general rule is that spousal support will be in effect for as long as it takes for the receiving spouse to become self-supporting.
Additionally, while alimony after the dissolution of a long-term marriage may be stated as “permanent,” it’s very uncommon for the judge to order a truly permanent support. In cases where the receiving spouse claims he/she has no ability to work or cannot become fully employed, evidence must be provided to support the claim. Alimony orders given on a long-term basis will reduce slowly to a very small amount. Simply put, while the court will not terminate the order on a particular date, a termination date can be set. The new order is expected to take effect from that date and the only exception to this is if the recipient of the spousal support applies for an extension before the termination date is set.
Speak to a San Diego Alimony Attorney Today
Filing for divorce and going through the process can be stressful enough and the situation can further be complicated by the issue of alimony if not approached with utmost care. If you’re unsure of whether or not you should still be paying spousal support or how you can survive financially after the dissolution of your marriage, contact an alimony lawyer at San Diego Family Law Attorney. Our team is experienced in negotiating spousal support on behalf of our clients, providing legal counsel on support issues, and trying alimony matters in court. Our main goal is to ensure that you can move on with your life as swiftly as possible. If in need of any help regarding your unfortunate marital split, please contact our devoted alimony attorney today at 619-610-7425.