The Marital Lifestyle Is The Benchmark For Alimony In California
The reason these rules exist is that the marital lifestyleis the ultimate benchmark for the support amount and which will dictate aceiling of sorts for the support.
If the alimony order was consistent with Family Code 4320and the marital standard of living, a supported spouse will generally notreceive an increase in support just because the supporting spouse has anincrease in pay. That is because the goal of Family Code 4320 is to maintainthe marital standard living and not the post separation standard of living.
Missing Alimony Late Or Partial Payments How Do You Get The Spousal Support Owed To You
On Behalf of Law Office of Forrest & Forrest, PLLC | Mar 19, 2022 | Alimony |
When your divorce decree orders your ex to pay alimony, you have the right to expect complete and timely payment. A court order created that spousal support obligation and your former spouse has the legal duty to comply.
In the real world, unfortunately, sometimes alimony obligors do not make payments as ordered. It can be because of job loss, illness, incarceration or increased expenses or sometimes just out of spite.
Should you find yourself high and dry as an alimony recipient, talk to a family lawyer about enforcing your divorce decree and getting a court order to collect what is rightfully due to you.
Are Alimony Payments Public Record
North Carolina divorce records are a matter of public record when they are recorded in a judgment however, alimony payments made under a privately executed alimony agreement remain confidential until an enforcement or other action is filed to enforce or modify the payment. Alimony documents that exist in the public domain may include details of the spousal support award handed down by a judge, as well as acts of contempt for late or missed alimony payments addressed in court.
Recommended Reading: Divorce After 30 Years Of Marriage Alimony
If You Can’t Afford The Amount Taken From Your Pay
If you recently went to court and the judge ordered this amount, you probably can’t change the earnings assignment unless something is incorrect or your financial situation changed. If your earnings assignment also includes payments of past-due support , you may be able to have the amount you pay in past-due support each month lowered.
How Does Spousal Support Work How Are Amounts Determined
In a California divorce, when one partner in the marriage has not worked outside the home or has worked only part-time in order to raise children and/or support the other partners career, that partner may seek spousal support.
The sum that a court awards will hinge on each divorcing partners marital and financial history, income, debts, and assets.
During a divorce, if spouses can mutually agree about alimony, a court will usually accept their agreement. But when alimony is in dispute, the court will determine the terms and conditions of the alimony arrangement.
When divorcing partners can agree on an alimony arrangement or on other areas of potential dispute, they save time and legal fees, and they avoid the acrimony and aggravation of having the dispute played out in a courtroom.
In some California divorces, spousal support is ordered temporarily in other divorces in this state, spousal support is called permanent.
As a general rule, when a marriage has lasted less than ten years, the alimony is temporary, and payments last for half the length of the marriage.
For longer marriages, generally speaking, no time limit for alimony payments is imposed and the alimony is considered permanent.
Don’t Miss: How Do I Look Up Divorce Records
How Is Spousal Maintenance Calculated
Judges are given broad discretion in whether to order spousal maintenance as well as the amount of the payments. It is not guaranteed. Instead, judges consider a number of different factors that are outlined in A.R.S. 25-319 when they are weighing whether to grant a request for maintenance.
Some of the factors that a judge will consider include the following:
Courts do not take marital misconduct into account when they are determining whether to award spousal support. Maintenance is also not meant to be punitive, so a judge will not order a spouse to pay maintenance simply to punish him or her. The statutes do not provide guidance for how much maintenance that judges should order when they do grant a maintenance request. After weighing the factors and taking them into account, judges can grant maintenance in an amount and duration that seems fair under the circumstances.
Finally, under A.R.S. 25-530, courts may not consider veterans disability benefits awarded for service-connected disabilities as a part of the income of spouses when they are determining whether to award spousal maintenance.
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.
Read Also: How Long To Be Married For Alimony
Will I Have To Pay Alimony
Either spouse who qualifies may move for alimony, but not every former spouse receives it. Alimony is typically awarded when one former spouse cannot meet his or her needs, and the other has money to pay for support. Alimony can be court-ordered or settled out-of-court in a separation agreement. North Carolina divorce attorneys can advise spouses on their eligibility for alimony, as well as argue the clients case in court for whether that spouse should receive or pay support, the amounts, and the duration of that support.
What About Cohabitation And Its Affect On California Alimony
California Family Code 4323 states:
” Except as otherwise agreed to by the parties inwriting, there is a rebuttable presumption, affecting the burden of proof, ofdecreased need for spousal support if the supported party is cohabiting with anonmarital partner. Upon a determination that circumstances have changed, the courtmay modify or terminate the spousal support as provided for in Chapter 6 of Part 1. Holding oneself out to be the spouse of the person withwhom one is cohabiting is not necessary to constitute cohabitation as the termis used in this subdivision. The income of a supporting spouse’s subsequent spouse ornonmarital partner shall not be considered when determining or modifyingspousal support. Nothing in this section precludes later modification ortermination of spousal support on proof of change of circumstances.”
The California legislature finally amended Family Codesection 4323 to include same-sex relationships, likely as a collateralconsequence of the California and the Defense of Marriage Act struck down bythe Supreme Court and an evolution of thought on this subject.
In the first version of this article written in 2014, beforethe law changed, we had written, “We expect that, soon, the Californialegislature will amend this statute to include same-sex partnership coupledwith cohabitation short of marriage as a presumption of reduced need, just asit exists in heterosexual cohabitation.”
Guess what? It happened.
You May Like: Do I Have To Pay Alimony To My Husband
Termination Of Alimony In California
Termination of alimony is also a common request after adivorce judgment.
In short-term marriages, the termination of alimony issimple because the date is generally one-half the duration of the marriage. Theshorter the marriage, the more likely the one-half duration will act as atermination. An alimony agreement should be explicit about what that terminationdate is. The agreement should have clear and specific language.
In long-term marriages, the court will generally notterminate its power to award alimony.
However, the court does have the power to order alimony tobe set at zero or even terminate it after a certain duration of time. This isespecially true in marriages that are very close and just over the ten-yearmark or those where the supported spouse no longer has a need for alimony orhas failed to make reasonable efforts to become self-supporting.
For example, in a 10 1/2 year marriage, the court could setalimony for half the duration of the marriage and then, at the halfway point,put alimony at zero or terminate it unless the supported spouse comes intocourt before that date, seeks and has a hearing on continuation of alimony.
These can be minefields for the supported spouses and, ifyou are in a contested hearing, it is very important that you get clearlanguage from the court as to what it intends to do.
It is equally important to make sure the intent is specificso you’re not later at the mercy of the Family Court to determine what you andyour ex-spouse intended.
How To Avoid Alimony
Many people considering divorce wonder how to avoid alimony or what is the best state for avoiding alimony.
There is no easy answer to this question, and the truth is that it is often difficult to avoid paying alimony. The following might reduce alimony payments or the duration of payment, and in some instances, may help you to avoid paying alimony:
Don’t Miss: Alimony In Georgia For Adultery
How Long Do You Have To Be Married To Get Alimony
There is no exact answer for how long a couple has to be married for one spouse to have to pay alimony to the other.
In many cases, shorter marriages are less likely to result in alimony payments, whereas longer marriages in which one spouse made significantly less money and/or stayed home to raise children will likely require one spouse to pay alimony to the other.
The purpose of alimony is for the lower-earning spouse to be able to maintain the same standard of living enjoyed during the marriage. In most states, longer marriages are associated with higher alimony payments and a longer duration of payments.
Related Reading: How High Are Typical Alimony Payments?
Late Payment Of Alimony
My question involves divorce in the State of: North Carolina. My ex-husband & I are divorced and have a Separation Agreement that is a legal contract, not incorporated into the Divorce. My ex has often been late with the payments up to 5 days, but recently over the past 2 months he is up to 10 days late with the alimony. There are indications that he is trying to find a way out of making these monthly payments. I consulted with an attorney last month and he sent a firm letter via email to my ex stating this was a legal, binding contract and non-payment was grounds for suing for breach of contract. Now it is the 3rd of July and the alimony payment has not been made again in addition to no communication. I work for a non-profit agency making very little money – the alimony I receive is what my son & I survive on. I cannot afford a retainer to have an attorney take this court. Is this something I could do on my own?Thank you for any guidance you can provide.
Also Check: Legal Separation Vs Divorce In California
How To Enforce Court
If the alimony payments youre counting on are late, reduced, or absent, it may be time to take actionrather than allowing the missing payments to jeopardize your and your familys financial security.
In many cases, the first step may be to contact your former spouse. In some situations, this can help clear up any honest misunderstandings before you begin working with an attorney.
Its important to note that your former spouse is legally obligated to make court-ordered payments. If a problem arises where theyre no longer able to make the payments, its their responsibility to pursue a modification through the courtnot let you find out the hard way when they simply stop paying.
If the missing spousal support payments cant be fixed through a straightforward conversation with your former spouse, then we highly recommend working with an alimony enforcement attorney to guide you through the next steps of the process.
To start, you and your attorney will need to file a motion to enforce your legal right to receive alimony payments.
The skilled attorneys at our family law firm have worked with many clients in very different situations to successfully file motions with the court and reinstate alimony payments. We understand how to work with the highly individualized and fact-based nature of these matters.
Property Division Is Considered When Calculating Alimony
Another issue to discuss with your Seattle alimony attorney is the connection between spousal maintenance awards and property division. Courts often divide the property and liabilities of the parties unequally. This is intended to address some of the same issues as alimony, namely the need to send both parties into the future in as equal a position as possible. If one party has much more ability to earn a high income or has significant separate property, then the court may award more of the community property to the disadvantaged spouse. However, to the extent that this is addressing some of the same issues as spousal support, you will often see a court awarding less spousal support where there is more property awarded, or giving less property in exchange for awarding more alimony.
Don’t Miss: What Happens If You Don T Pay Alimony
Enforcing The Spousal Support Order
A refusal to pay spousal support is essentially a violation of court orders. To remedy this, courts have a substantial amount of discretion when it comes to punishments. A judge might impose a fine on your former spouse or even order jail time if he or she continues to disobey the court order.
To ensure you receive the money you are owed, your attorney can file an income execution notice to have the amount you are owed withheld from your former spouses paycheck, which would be sent directly to you. An income withholding order can remain in effect even after the overdue spousal support is paid to prevent missed payments from occurring in the future.
If your former spouse owes a sizeable amount of money, your attorney can also request a judge to issue a money judgment against him or her for the amount owed, including interest. Additionally, you might also be reimbursed for the legal fees you incurred to enforce the spousal support order.
How To Handle Late Alimony Payments
One of the most delicate situations caused by divorce is the awarding and collecting of spousal support payments. While the wage garnishment process attempts to alleviate the burden of collecting payments each month, there are situations in which people fall behind on their payments. Late alimony payments are stressful to deal with and it is important that you understand your rights in obtaining your spousal support in California.
While a significant change in circumstances can legally and temporarily give the spousal support payor the right to modify spousal support, there are serious consequences for neglecting to pay spousal support and judges typically favor the person receiving the support.
Also Check: Who Pays Rent During Divorce
Our Divorce Attorneys Can Help
Whether you are a dependent spouse, supporting spouse or somewhere in between, our experienced family law and divorce attorneys can help you prepare your alimony case. We can help you negotiate a resolution to an alimony claim, or, if necessary, prepare your alimony case for trial. We can make sure you present the best possible case when it comes to an alimony claim. With support from the largest and one of the oldest firms in Western North Carolina, we have the resources to prepare your case quickly and efficiently. Our attorneys have significant experience in both jury and non-jury trials. Set up a consultation to talk to one of our experienced family law attorneys. We look forward to hearing from you.
Modification Of Alimony Orders
To modify a California alimony order, the requesting spousemust show there has been a material change of circumstances since the order.
The circumstances to which we refer are the same ones thatFamily Code 4320 lays out and which we discussed earlier.
Notice the use of the term “material”. It is not enough to showa change. The change has to be significant enough to justify a modification.
Rushing to court just because there has been slightadjustments in income upward or downward or slight adjustments in the standardliving will generally cost you a lot of money in attorney fees, only to losethe modification proceeding.
Don’t Miss: Can Alimony Be Changed After Divorce
Retroactivity Of Alimony In California Upon Modification
Retroactivity of support in a modification proceedingtypically goes back to the date of filing of the request to modify orterminate. However, when the modification of alimony request is the result ofeither spouse’s unemployment, the court must make the retroactive modificationto the later of the date of service of the request for modification or the dateof unemployment, unless the court finds good cause not to make the orderretroactive and states on the record the reasons for that good cause.
This must be more than a conclusion but rather the factualreasons the court refused to make the order retroactive.
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.
Also Check: How Much Does An Amicable Divorce Cost