Alimony is officially known as spousal support in California. The award of support is not automatic in a divorce, but it is often awarded to assist a spouse with lesser resources to maintain a standard of living close to what they enjoyed during the marriage.
Here are several other things you should know if you’re going through a divorce, and alimony is one of the issues you’ll need to resolve.
- Types of Spousal Support
- How Long Does Spousal Support Last?
- How are Spousal Support Payments Calculated?
- Modifying or Terminating Support
- Tax Implications of Alimony in California
- What Happens When a Spouse Falls Behind on Alimony Payments?
- California Alimony FAQs
- Helpful Resources
Types of Spousal Support
Temporary Spousal Support
Temporary spousal support is awarded to provide financial support to the lower-earning spouse during separation and the divorce proceeding. It does not expire or have a set period for support. However, it ends after a divorce is finalized and a long-term award is in place.
When a divorce case is filed, an attorney or the spouse seeking relief will also file a Request for Order for temporary alimony. That is a “motion” to request a hearing with an “ex parte application” asking the court to grant an expedited hearing date. The effect is that the person in need of spousal support doesn’t have to wait a month or two for a hearing date and an award.
Family law attorneys and judges in California use a specialized software program that automatically generates a support figure based on specific factors, such as the spouses’ incomes, health insurance deductions, and other financial considerations.
Permanent Spousal Support
Long-term spousal support is sometimes referred to as permanent support, although that is a bit of a misnomer.
Long-term support is granted to place the supported spouse at or near the “marital standard of living” after the divorce. Long-term spousal support is not calculated using a software program, unlike temporary alimony.
Permanent alimony is a form of long-term support and is rarely awarded. The court typically reserves it for spouses ending a long-term marriage of 10 or more years where one spouse can’t enter the workforce due to advanced age or illness.
California law also provides for reimbursement support. It may be awarded when one spouse helped finance the other’s education or career advancement training during the marriage,
The thinking with reimbursement support is that when spouses work together to allow one to get an advanced degree, both will benefit from the advancements during the marriage. Only the spouse with the degree will benefit when couples divorce and courts can rule that may not be fair to the other.
How Long Does Spousal Support Last?
For short-term marriages, the general rule is that spousal support in California is awarded for half the length of the marriage. Any marriage less than 10 years is considered a short-term marriage.
For long-term marriages (10+ years), a judge will not set a termination date on permanent spousal support. That doesn’t necessarily mean spousal support will last forever. In fact, the judge could set spousal support at $0.
Keep in mind that marriage is defined as the period between the date of marriage and the date of separation.
A judge will rarely set an alimony award longer than a marriage. In most courts, the thinking is that lesser earning spouses will receive support for as long as they need and as long as the other spouse can pay.
California places the burden on the paying party to prove that spousal support is no longer required at a future date. The recipient spouse also has an obligation to work towards being self-supporting.
Courts have a lot of discretion in determining how long alimony should last within general equitable principles and guidelines.
After the divorce is final, alimony continues according to the terms in your marital settlement agreement or the alimony award. Typically, a spousal support award continues until one spouse requests a modification or termination of support or the duration expires.
How are Spousal Support Payments Calculated? What Factors are Used?
The first test for calculating spousal support in California is to prove that the requesting spouse needs the support and that the other can provide it.
After this is decided, the court will gather financial information from each spouse for temporary spousal support cases and determine an amount using a guideline formula.
Before this is finalized, a judge must also consider the amount and duration based on several statutory factors. Attorneys often help spouses in court cases by developing evidence based on these factors:
- The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
- The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.
- The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment incurred during the marriage to permit the supported party to devote time to domestic duties.
- The extent to which the supported party contributed to attaining an education, training, a career position, or a license by the supporting party.
- The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.
- The needs of each party based on the standard of living established during the marriage.
- The obligations and assets, including the separate property, of each party.
- The duration of the marriage.
- The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
- The age and health of the parties
- Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.
- The immediate and specific tax consequences to each party.
- The balance of the hardships for each party.
- The supported party’s goal to be self-supporting within a reasonable period. Except in the case of a marriage of long duration, as described in Section 4336, a “reasonable period” for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion in ordering spousal support for a greater or lesser length of time-based on any of the other factors and the parties’ circumstances.
- The criminal conviction of an abusive spouse shall be considered in reducing or eliminating a spousal support award per Section 4325.
- Any other factors the court determines are just and equitable.
After considering these factors, it’s essential to note that a judge has great discretion in determining how much spousal support to order.
Modifying or Terminating California Spousal Support
Either spouse can ask the court to modify or terminate a support order. It’s incumbent on the requesting party to demonstrate a significant change of circumstances since the original order.
A long-term support order can be modified if:
- The order was unfair or based on false or incomplete information (i.e., hiding assets or failing to report income) and was later used as one of the factors to determine the support length and duration. When it can be proven that the court failed to properly consider one or more of these factors, either party may file a motion to amend the order.
- Changed circumstances such as if either spouse suffers an illness or disability that affects their ability to work, or if other financial changes affect the paying or recipient spouse,
Voluntary actions that create a change in circumstances will result in the denial of a modification request. For example, a modification will be denied if a party voluntarily quits a job, moves into a more expensive dwelling, or if any other voluntary action changes financial condition.
Under California Family Code Section 4337, spousal support automatically terminates when the supported spouse remarries or enters into a domestic partnership or either spouse dies. No new or updated court order is required in these situations.
Tax Implications of Alimony in California
If you finalized your divorce on or before December 31, 2018, spousal support payments are tax-deductible to the paying spouse and reportable taxable income to the recipient.
However, if you didn’t finalize your divorce until January 1, 2019, or later, new changes to the Tax Cuts and Jobs Act eliminate the tax deduction and reporting requirements.
If you’re negotiating an alimony award, part of what you must consider is these recent tax changes impact annual income and alimony awards. A tax deduction benefited the person paying alimony, but now they must pay tax based on that taxable income. That makes paying maintenance less attractive and could make negotiating more difficult.
What Happens When a Spouse Falls Behind on Alimony Payments?
Some spouses may encounter hardships or simply refuse to stay current with alimony payments.
Because alimony is awarded through a court proceeding, the obligated spouse can be ordered by the judge who presided over the divorce process to return to court to explain why alimony payments have stopped.
California courts have several possible actions to enforce awards. Some of the more common enforcement actions include:
- Wage garnishment. An employer must implement an earnings assignment within ten days of receipt or they will be susceptible to legal action.
- Payment of a liquidation amount added to a current award amount until the balance is paid.
- 10% interest penalty per year on the arrears balance due. That is required by law, and a judge cannot stop imposing these penalties.
- The removal of funds from an existing bank account
- Interception of a tax refund
- Fines and jail time when a judge finds the obligated party in contempt because they have the means but are willfully not paying
If the obligated spouse cannot afford to pay the court-ordered alimony, it’s possible to seek a modification. However, while this process plays out, the party is still obligated to pay the current amount.
In most cases, a modification can only be issued retroactively to the date the request for order was filed with the court.
Read More: Everything You Need to Know About Alimony
California Alimony FAQs
Does domestic violence affect spousal support?
A spouse or domestic partner that is the victim of domestic violence may ask for support without filing for divorce or legal separation. An order of support can also be requested when one spouse obtains a domestic violence restraining order against the other.
When domestic violence is present during a marriage, the court must consider this as a factor when determining permanent spousal support, as long as the domestic violence is “documented.”
Under California Family Code 4325, “in any case where a spouse is convicted of domestic violence against the spouse within the past five years, there is a rebuttable presumption that the perpetrator spouse is not entitled to receive spousal support.”
How does cohabitation affect spousal support?
When a recipient spouse enters into cohabitation with someone after a divorce, this can be justification for the paying spouse to seek a modification or termination of the existing spousal support order.
How long do you have to be married in California to get alimony?
The length of the marriage is one of the critical factors in determining spousal support. When awarding alimony, judges have broad discretion and can decide whether an award is justified even in short-term marriages of less than a year. However, an award may only be ordered for a very short period in cases like this. Long-term support may never be awarded. An alimony obligation may be met through temporary support payments.
There is a rebuttable presumption for marriages under ten years that alimony is paid for one-half the total length of the marriage. For example, if a couple has been married for six years, the presumption is support should be paid for three years at a maximum.
Does the Court discriminate based on gender when ordering support?
No, spousal support awards are gender-neutral in California.
What happens when a supported recipient remarries?
When the recipient of spousal support remarries, spousal support is no longer payable to that spouse unless the parties expressly agreed to a continuing payment provision in their divorce Marital Settlement Agreement.
How does making a “good faith effort” to become self-sufficient factor into alimony?
Known as a Gavron Warning, Family Code 4330(b) states, “When making an order for spousal support, the court may advise the recipient of support that he or she should make reasonable efforts to assist in providing for his or her support needs, taking into account the particular circumstances considered by the court under Section 4320….”
This warning means that an ex-spouse is not entitled to relax and refuse to make a good faith effort to become self-supporting after the court enters a permanent support order.
Does child support have an impact on alimony?
Yes. One of the factors a judge must consider is “The earning capacity of the supported spouse and ability to be employed without interfering with the best interest of dependent children in his or her custody.”
In addition, child support payments are mandatory in California, but spousal support is not. This is one of the areas where courts have broad discretion when looking at the overall finances of the paying spouse.
Is there a cap on alimony in California?
Spousal support is generally capped based on the marital standard of living. The payor spouse may be required to pay alimony in the amount required for the recipient spouse to attain the marital standard of living.