How Alimony Works In California
Alimony is generally paid on a regular basis, usually in installments of a specified sum per month. However, sometimes a judge will order one spouse to give the other spouse maintenance in a lump sum in cash or a transfer of assets.
The court cannot reverse the lump-sum awarded alimony. However, unless the initial court order clearly stated that periodic alimony payments were “nonmodifiable,” you may often seek the court to modify or terminate them. You will need to persuade the judge that the modification or termination of maintenance is necessary due to a material change in your or your spouse’s circumstances, such as the retirement of the paying spouse or the beginning of a supported spouse’s new lucrative career.
Some situations, like when the supported spouse marries again or both spouses pass away, result in the automatic termination of periodic alimony. Other specific conditions, such as when the supported spouse begins living with another partner, may cause alimony to stop or justify a reduction in payments, depending on the rules in your state, if they materially impact the recipient’s need for support.
A prescreened California divorce lawyer can help you with the specifics of alimony, how it works, and how you should approach it legally.
Is Alimony Determined Before Or After Child Support
Now, in certain states, the amount of alimony that will be paid must first be established before a child support payment schedule may be negotiated. On the other hand, the reverse is true in the state of California. In the state of California, a decision about alimony cannot be made until after a child support order has been established.
What Is A Wife Entitled To In A Divorce In California
In the state of California, a wife may be entitled to primary child custody, as well as fifty percent of the marital assets, forty percent of her spouses income in the form of spousal support and child support, and spousal support. These privileges are, among other things, determined by the length of the marriage as well as the economic level of each partner.
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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.
How Is Alimony Calculated
Alimony is calculated in one of three ways in the state of California. The first is only for temporary alimony. In the case of temporary alimony, the court will usually use a formula used for child support instead of traditional alimony spousal support factors. The second method is used for both rehabilitative and permanent alimony. For these two types of spousal support, the judge will determine alimony payments by considering a list of factors and their own discretion. These factors include:
- How much each spouse earns
- The education level of each spouse
- If and how much each spouse contributed to education costs
- The payees ability to pay alimony based on income, work, education, debt, assets
- The cost of living for each spouse
- How long the marriage lasted
- The ability of each spouse to be employed without interfering too much with the children
- The age and health of each spouse
- Domestic violence, child abuse history, criminal history
- Taxes each spouse will have to pay
- The length of time it will take the supported spouse to become self-sufficient
- Other factors the court deems relevant through its own discretion .
If the spouses would rather decide without the help of a judge, they may form a contract that both agree on. In this case, the spouses would decide the amount to be awarded and the length of the alimony arrangement. This would then have to be signed and filed by the court.
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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.
Can You Give An Example Of How This May Work
Sure. Recently, I had a trial. I represented wife. We have a five-year restraining order against her husband. Husband also depleted $800,000 of the community assets in the last three years to gamble at a casino and he has physically beaten my client.
He has been employed for 28 years, but he just lost his job he filed a request for order for support, and I am not proud of this, to put this on media, but I lost that case.
My client has to pay him $2,000 a month in spousal support, despite all of the factors.
Why? Because this judge decided to simply look at the dissomaster, and thats what I mean by striking fear in people, because it doesnt take into account the nuances of a case, despite my advocacy.
Temporary spousal support will look at the price of support payments provided by a supporting party with respect to incomes.
For you as a Certified Divorce Financial Analyst, you will look at tax implications. Youll look at 401K contributions. Youll look at itemized deductions. Youll look at health insurance. The purpose of doing all that and putting this input is to truly determine the net spendable income between the parties to try to maintain that immediate status quo. But its done by the presumptively correct guideline formula dissomaster thats temporary spousal support.
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What Is Considered As Income For Calculating Spousal Support In California
Its not clearly defined under the Family Code in California. So, I do the following.
In California spousal support cases, I always reference Family Code Section 4058. Why? Because 4058 is a child support provision regarding what is the income available for child support? Its very broadly defined.
In all of my pleadings, I always reference Family Code Section 4058 for spousal and child support, and no one really blinks an eye. They just kind of nod and go, Oh, okay, sure.
But what is actual income for spousal support? I think it should be defined, broadly, as for child support.
It includes actual income. And what is actual income?
Earnings, commissions, bonuses, and what youre going to see on someones W2 in tax returns. Another form of actual income is self-employment, what youre going to see in a schedule C or a K1.
Of course, when you look at that, income available for taxes is not income available for support. In other words, someone may say, Well, I only earned $80,000 running my construction business.
Okay, but when you do it just that forward depreciation for perks, do you run your car through it? Do you eat out, and you entertain? You take people to Hawaii, and those are perks that were going to need to add back for your income. We also need to look at whether theres cash transactions that may not be reported so that the would-be supporting party wont have to pay spousal support. Self-employment income is an important issue to address and to note.
Alimony Or Spousal Support In A California Divorce
Spousal support, also called alimony, is a monthly financial payment one spouse makes to the other. For a court to order spousal support, one spouse must have a monetary need for support and the other an ability to pay. The court also considers the length of the marriage and the marital standard of living.
There are two types of spousal support in California: temporary and permanent. Temporary support is support ordered during divorce proceedings. Permanent support is entered as part of a final divorce decree.
California uses a formula when calculating temporary spousal support. However, there is no set calculation for determining permanent support. Instead, the court reviews several factors to arrive at an appropriate payment.
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The Family Court Retains Its Power To Terminate Alimony In Long
Just because a marriage is of a long duration and even if itis much longer than the 10 year mark does not mean the court loses all power toterminate alimony.
The court retains its power and has the ability to terminatealimony in longer marriages if there is persuasive evidence that the supportedspouse can sustain the marital lifestyle and standard living on his or her own.
Another way to understand this concept is that the court must find thesupported spouse will meet his or her financial needs without the necessity of additionalalimony from the other spouse.
Generally, that means the supported spouse hasgained income, typically through employment, that allows him or her to providefor his or her needs. The nature and extent of the employment is a factor inthe court’s consideration and is not limited to just the income.
The court can also terminate alimony if the supported spousefailed to make reasonable efforts to become self-supporting and had thecapacity, opportunity and ability to do so.
In addition, depending on the amount of alimony, obtaining aseparate estate may be grounds for termination of alimony even in a long-termmarriage. This could include an inheritance as one common example.
The court would have to look at how and why that separatestate would help the supported spouse meet his or her financial needs.
Is The Computer Program The Final Word On Temporary Alimony In California
No. The computer program to which we refer is not the be-all and end-all of the temporary alimony calculation in California. The court has discretion to depart from the program in situations where a requesting spouse’s need is higher, or the paying spouse’s ability to pay is materially less or more than what the computer program calculates.
In addition, if there are circumstances where there are unusually high expenses or tax consequences, the court can adjust numbers as necessary.
The court does have discretion when determining temporary alimony and it is not a formula in every case. However, spouses should not expect the court to divert from the computer formula in temporary alimony situations unless there is evidence of a persuasive need to depart from it.
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Contact The Law Offices Of Dorie A Rogers For Alimony Support
At the Law Offices of Dorie A. Rogers, we understand that alimony can be a challenging subject for many people. Thats why were here to help. Our attorneys have years of experience in family law and are more than happy to answer any questions you may have about spousal support.
If youre looking for help avoiding alimony payments, or if you need assistance with an existing alimony order, contact us today to learn more and begin your case.
How To Calculate Alimony
This article was co-authored by Clinton M. Sandvick, JD, PhD. Clinton M. Sandvick worked as a civil litigator in California for over 7 years. He received his JD from the University of Wisconsin-Madison in 1998 and his PhD in American History from the University of Oregon in 2013.There are 31 references cited in this article, which can be found at the bottom of the page. This article has been viewed 320,808 times.
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How Is Permanent Spousal Support Calculated
Permanent spousal support is not really calculated since the court is not allowed to use a calculator. The court is required to list and consider each and every factor in Fam. Code 4320 to determine the amount and duration of spousal support, if any. Generally, these are the standard of living during marriage, employment, income, earning capacity, health of each party, and so forth.
In practice, permanent spousal support judgments are typically slightly lower than temporary spousal support orders.
Does The Court Only Look At The Good Times
Typically, the court will look at the last five years of a long-term marriage as indicative of the marital lifestyle. That amount of time can vary depending on the case. That stops at the date of separation when there was a final and irremediable breakdown in the marital relationship.
See our informative article on the date of separation in a California divorce.
Still though, that five-year mark is not a rule. Family law judges have broad discretion and may go back as long as they believe appropriate. Much depends on the consistency of the lifestyle in determining how far back the court will go. California alimony laws do not handcuff a judge. All the judge needs to do is use reasonable discretion.
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How Do You Calculate California Spousal Support
The guideline recommends that the amount of spousal support paid by the supporting spouse be presumed to be forty percent of that spouses net monthly income, with this amount being reduced by fifty percent of the receiving spouses net monthly income. If there are dependent children involved, the determination of spousal support comes after the determination of child support.
What Happens When A Support Recipient Remarries
There are several automatic ways spousal support ends under California law. First, if a support obligor or recipient dies, spousal support will terminate. Second, if a specific date is reached for which the parties agreed or the court ordered spousal support to end. Third, when the recipient of spousal support remarries, spousal support will no longer be payable to that spouse unless the parties specifically agreed in their divorce that spousal support would continue to be paid even upon remarriage.
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Alimony Or Spousal Support In A High
A high net worth can directly impact alimony or spousal support orders in a California divorce. However, there are legal guidelines and fundamental precedents these orders must follow before any deviations or exceptions for high-net-worth individuals.
The following offers a basic overview of high-net-worth spousal support orders in California. This is a general guide. For case-specific information, consult an experienced high-net-worth divorce attorney.
A Quick Guide To Paying And Getting Alimony In California
One spouse makes alimony payments to the other after divorce or while a divorce case is pending, as per court order or the couples agreement. States refer to alimony in various ways, such as spousal support and maintenance, although they all generally mean the same thing.
One spouse may be ordered by the court to pay alimony to the other when a married couple decides to separate or get a divorce in California legally.
That said, alimony is often tied to the messy aspects of divorce. You could be paid too little, compelled to pay too much, or be subjected to penalties.
Heres a quick summary of alimony payments and how our prescreened California family law attorneys handle them:
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Taxes And Spousal Support
If your divorce was finalized before December 31, 2018, the IRS permits the paying spouse to deduct spousal support payments as a tax deduction, but the receiving spouse must report the payments as income. However, recent revisions to the Tax Cuts and Jobs Act eliminated any tax deductions or income reporting requirements, which means the paying spouse does not receive a credit, and the IRS does not consider the support payments to be income for the recipient.
Parties negotiating spousal support should take into account the new tax adjustments before proceeding with any agreement on alimony in California.
Important note for California divorce laws: State tax law still requires the recipient of spousal support payments to report the payments as income, and the paying spouse can claim the deduction on state tax filings.
Actual Earned Income Is Not The Only Consideration
Just as this factor states, earning capacity is alsorelevant. Think of earning capacity in this way – if a spouse is willfullyunderemployed or unemployed when he or she could be earning more money, thecourt has the power to impute income based on that spouse’s earning capacity.
This is not something that is done without evidence that ispersuasive on the issue of the spouse’s unwillingness to work while having theopportunity and ability to do so. The Family Court will typically not look atan unusual or extraordinary work schedules in determining a spouse’s earningcapacity. No spouse is obligated to work unreasonable hours to pay support.
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