Family Code 4336 Text
Let’s now look at long term marriages and, specifically, the California family courtâs retention of its power to make orders for alimony.
California Family Code 4336 through states:
Except on written agreement of the parties to the contrary or a court order terminating alimony, the court retains jurisdiction indefinitely in a proceeding for dissolution of marriage or for legal separation of the parties where the marriage is of long duration.
For the purpose of retaining jurisdiction, there is a presumption affecting the burden of producing evidence that a marriage of 10 years or more, from the date of marriage to the date of separation, is a marriage of long duration. However, the court may consider periods of separation during the marriage in determining whether the marriage is in fact of long duration. Nothing in this subdivision precludes a court from determining that a marriage of less than 10 years is a marriage of long duration.
Nothing in this section limits the courtâs discretion to terminate alimony in later proceedings on a showing of changed circumstances.
When Does It End
Spousal support generally terminates on the death of either party or on the remarriage of the supported party. It is possible that a party who is cohabitating with a new party may be found to have a reduced need for support.
If the material and relevant conditions change during the support period, either party can request a modification or termination of regular payments. The exception would be if the couple had a written agreement not to seek changes in court.
Keep in mind that spousal support, although a result of divorce, has nothing to do with the cause of the divorce unless there has been domestic violence.
Also, as noted above, spousal support isnt forever. There are guidelines for the duration. And finally, spousal support is not automatic. It depends on many factors. Consulting with a family attorney would be a good place to start if you or your spouse is considering divorce.
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.
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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.
How Alimony Is Determined For Long Marriages In California
Motions to dismiss assert that the plaintiffs claim is irrelevant or invalid, but usually not based on the facts of the complaint. Motions to dismiss are filed for a range of reasons, which may include:
- Statute of limitations expiration: The case does not fall within Californias time limit for filing.
- Lack of subject matter jurisdiction: The court does not have the authority to hear this type of case.
- Lack of personal jurisdiction: The defendant does not have sufficient minimum contacts in the jurisdiction where the lawsuit was filed.
- Improper Venue: A different court has personal jurisdiction over the defendant and should hear the case.
While motions to dismiss can be effective at getting a case dismissed in its early stages, many cases do not have the flaws required.
Factors For Determining Long
California doesn’t use a “calculator” for determining the amount of long-term spousal support. Instead, judges must decide how much to award after they’ve considered all of the following circumstances:
- each spouse’s needs, based on the standard of living they had during the marriage
- each spouse’s ability to earn enough to maintain that standard of living, taking into account their marketable skills, the job market for those skills, how much time and training the supported spouse would need to develop those skills, and how much that spouse’s earning capacity was reduced because of time taken out of the job market to care for the children and home during the marriage
- the supporting spouse’s ability to pay alimony
- the goal that the alimony recipient should become self-supporting within a reasonable period of time
- the supported spouse’s ability to be gainfully employed without unduly interfering with the interests of children in that spouse’s physical custody
- each spouse’s age and health
- each spouse’s debts and assets, including their separate property
- how long the marriage lasted
- how much the supported spouse contributed to the other’s educational degree or professional license during the marriage
- whether there’s documented history of domestic violence against either party or the children
- the tax consequences of spousal support
- the balance of hardships to each spouse, and
- any other factors the judge believes should be considered, based on what’s fair.
Do You Qualify For Spousal Support
California Family Code §4320 sets for the circumstances to be considered in ordering spousal support
In ordering spousal support under this part, the court shall consider all of the following circumstances:
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 partys present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
The ability of the supporting party to pay spousal support, taking into account the supporting partys 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.
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Is There A Way Of How To Divorce Without Paying Alimony
While it is often impossible to get out of paying alimony if your former spouse earns significantly less than you and if youve been married for a long time, there are ways to reduce your payments and/or the amount of time you have to pay alimony.
For instance, if your former partner had an affair, or if they marry again, you may be able to avoid paying alimony.
You might also be able to reduce alimony payments or get out of paying altogether if you can demonstrate that your spouse doesnt need it or if you are able to negotiate by giving up other assets.
Questions By The Person Paying Alimony
Calculating your alimony amount will be straightforward if you are a W-2 employee and you earn more money than your spouse.
Using the proper computer software programs that family law lawyers and judges use, a family law lawyer can tell you the temporary alimony amount. As we wrote earlier, regarding the ultimate amount, that is a little more involved.
The information the divorce lawyer will need to determine how much alimony you will pay requires an analysis of the Family Code 4320 factors.
Suppose you are a marriage well under 10 years. In that case, your total alimony exposure should not be more than half the duration of the marriage. As we explained earlier, the marriage duration is from the date of the marriage to the date of the separation.
Now suppose your marriage is very close to 10 years. In that case, an experienced divorce lawyer can let you know if factors may cause a court to treat your marriage as if it is a 10 year or longer marriage.
If you are a marriage that is 10 years or longer, please do not assume that you have to pay long-term or even lifetime alimony. That is a false assumption many spouses make.
Several factors affect whether a marriage that is 10 years or longer will result in an open-ended spousal support order that continues until death, remarriage, further order of the court, or earlier termination date.
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What Are The Different Types Of Alimony
Most states break down alimony into at least a few different types, each with its own intended purpose and duration. While states define these differently, there is significant overlap in how they are often categorized. Common among states is durational alimony, structured by a specific length of time for which support is deemed necessary. Also common is rehabilitative alimony, where payments are provided to allow the recipient to obtain education, training or work experience so they can become self-supporting.
Many states permit permanent alimony intended for spouses who are disabled, elderly or chronically ill. On the opposite end of the spectrum, many also delineate short-term or transitional forms of alimony that support only very limited needs during or immediately following a divorce.
Also available in some states is reimbursement alimony, which compensates for specific contributions a spouse made to their marriage , potentially even through a one-time alimony payment.
Factors In Spousal Support
Each California county has its own method of calculating temporary support. When determining post-divorce alimony, the judge will consider a range of factors such as:
- How long the marriage lasted
- The standard of living you shared while married
- The economic circumstances of both you and your estranged spouse
- Your work-based income, including whether you cannot work because you care for young children
- Whether you contributed to your spouses education or career
- Your age and health status along with that of your spouse
- Any history of domestic violence by either person
- How spousal support will affect each persons tax liability
If you have a valid California prenuptial or postnuptial agreement, the court will typically abide by its terms when deciding on spousal support.
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What Is The Process For Getting Alimony
For alimony to be ordered, one or both spouses must request it from the court. Usually, this is indicated in the initial filing document for divorce, such as a petition for divorce or petition for dissolution form. Alimony can be agreed upon in a settlement or through mediation or the couple can take the issue to trial where the judge will decide.
Alimony is usually decided after issues of child custody, child support and property division have been settled or determined. Temporary alimony may also be granted early in divorce proceedings to provide interim support for the non-moneyed spouse until the final divorce ruling is issued.
California Alimony Laws Allow Retroactive Orders That Go Back In Time
A retroactive order is one that goes backward in time andstarts from that prior date. For example, if the court makes an alimony order onDecember 1, 2019, and the support order is retroactive to August 1, 2019,August 1, 2019 becomes the date that the alimony starts even though the courtmade to order in December.
California’s laws generally allow an alimony order to beretroactive to the date the spouse filed his or her request for order. Somespouses may argue the initial order should be retroactive to the filing date ofthe petition for divorce or legal separation. There are legal arguments for andagainst this position.
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How Long Do You Have To Be Married To Get Alimony In California
This is a question often raised by a spouse in a short-term marriage. Spouses ask this question because they are unsure whether a court would order alimony given the short duration of their marriage.
This question impacts both the spouse who is concerned about paying alimony and the spouse concerned about receiving alimony.
Let’s look at this question closer for some answers. Everything we write here only applies to California divorces.
Can A Failure Of A Stated Assumption Be A Material Change Of Circumstances
A fascinating situation is a failure of an assumption thattakes place upon which an alimony order was made.
The most interesting case on this point is one calledMarriage of Jacobs.
In that case, there was a long-term support order and the courtreduced the support order to one dollar per year. However, the court based thatreduction on the supported spouse’s psychiatric problems being alleviated bythat time so that she could become reasonably self-supporting.
One California Court of Appeal held that the failure of thatassumption occurring constituted a change of circumstances that justified themodification of the support order and for the support to continue.
What this case teaches is that a material change ofcircumstances does not always have to be a act or event but can be, undercertain situations, the failure of an assumption to take place.
It would be unusual for a failure of an assumption to begrounds as a material change of circumstance unless the court order spells itout.
One situation may be to supported spouse’s failure to makegood faith efforts to become self-supporting. Those cases are factually richand can cut both ways.
For example, a supported spouse may fail to comply with thecourt order to make reasonable efforts to become self-supporting. This mayresult in a reduction of support.
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What Is The Difference Between How A Court Calculates Temporary Alimony Versus Alimony At The Judgment
The biggest difference between an alimony order at the judgment phase versus a temporary one is the court cannot use the computer program to determine the amount. The court bases the alimony order in the judgment on Family Code 4320.
Family Code 4320 sets forth many factors.
Most of the factors are common sense. Some of them require a deeper analysis.
The ultimate goal is to reach a reasonable alimony order, if any, based on the complete set of circumstances.
We go through the Family Code 4320 factors below but first, let us discuss some special challenges the Court may face when evaluating Family Code 4320.
What Is The Marriage Period The Court Takes Into Consideration In A Long
The marital standard living and lifestyle can be difficult to determine in long-term marriages. For example, when spouses are married for over 20 years, what portion of that marriage should the court take into consideration when determining lifestyle? Is it the entire 20 year period? How would that work with a significant increase, decrease or wild fluctuations in the spouses’ lifestyle?
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Payment Of Spousal Support
The court will determine how spousal support will be paid by the paying spouse. When one spouse has a considerable amount of separate property or money, the court may enable the paying spouse to give the recipient spouse a lump-sum payment of property or cash.
Lump-sum payments are advantageous to the paying spouse because they eliminate the requirement for regular payments and the risk of the receiver later requesting an increase in support. A lump-sum payment will also help the recipient spouse because there will be no need to worry about the other spouse failing to pay in the future. On the other hand, lump-sum payments eliminate the potential of altering the award afterwards.
Typically, the court requires that payments be made on a regular basis, usually monthly. The paying spouses employer will receive an income withholding order from the court, instructing payroll to deduct spousal support from the employees salary. Income withholding is helpful unless the paying spouse moves jobs and fails to notify the court or actively quits working to evade payments. If the paying spouse fails to comply with the court order, the receiver spouse can ask the court to intervene to collect the lost payments.
The Material Change Of Circumstances Must Be Unanticipated
The material change of circumstances should also not besomething anticipated by the court order.
For example, if the alimony order wasbased on the supported spouse earning a certain sum of income and the supportwas adjusted in the order based on an imputation of that income, when thesupported spouse gets a job and makes at or about that income, the supportingspouse will have a difficult time seeking a modification.
That is because the court order already imputed a certainsum of money to the supported spouse and the fact that he or she is nowactually receiving that money through employment isnot really a change that has occurred.
A careful reading of the order and an understanding of thecircumstances that existed at the time it was entered, especially those thatboth of the spouses knew and recited in the order, should be carefully reviewedbefore any modification proceeding is filed.
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Here Are Some Cases In Which California Spousal Support May Be Denied:
- The spouse is able to earn a sufficient income to maintain the standard of living enjoyed during the marriage.
- The lower-income spouse has separate property or assets that are enough to provide support.
- The division of community property will provide the lower-income spouse with sufficient support.
- The other spouse has custody of the children and will provide their full support.
- The lower-income spouse has made no effort to become self-sufficient.
- The higher-income spouse is not financially able to provide spousal support because of other obligations.
- The marriage lasted fewer than ten years.
- The lower-income spouse was abusive.
The contributions of stay-at-home parents should not be overlooked. If you gave up your career to support your spouse and children, you deserve a chance to get back on your feet. Spousal support can help you meet your needs while you get the training you need to get back in the job market. To talk with a San Francisco spousal support attorney about your options, contact the Law Offices of Paul H. Nathan at 415-341-1144.