Spousal Support Rights (Alimony)

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What is spousal support?

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Spousal support is an amount of money paid to a person's former spouse. The purpose of spousal support is to assist a person's former spouse maintain the standard of living which both spouses enjoyed during their marriage.

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Note: The term "spousal support" is used in California family law courts; however, the term alimony is mostly used by non-lawyers and the term spousal maintenance is used by some states to refer to what California refers to as spousal support. Either way, the terms spousal support, alimony, and spousal maintenance are synonymous terms. Also, the term family maintenance is a term used to describe an amount of money ordered by the court that is intended to include both spousal support and child support.

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As stated, spousal support is intended to assist a former spouse maintain the standard of living enjoyed during the marriage. However, in reality, the amount of money awarded to the receiving spouse, if any, will rarely be sufficient enough to recreate the standard of living that he or she enjoyed during the marriage. Nevertheless, the family law court will do the best it can to achieve this goal.

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Am I entitled to spousal support?

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Husbands, wives, and domestic partners are eligible to receive spousal support. When considering whether a person is eligible for spousal support, the Court will consider many factors. The most important factors include: the respective incomes of the parties, the length of marriage, the presence of any current child support order(s), the age of the parties, the respective education of the parties, the timing of the request for spousal support, and more.

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Will I have to pay spousal support?

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You will not have to pay spousal support if your spouse does not file a request for spousal support with the court. If your former spouse files a request for spousal support, whether or not you have to pay spousal support depends on many factors, including: the respective incomes of the parties, the length of marriage, the age of the parties, the presence of a child support order, any agreement reached in a marital settlement agreement, and more.

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Do I pay support if my ex was unfaithful?

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California is a “no fault” divorce state, which means that the divorce court will neither look at the reasons for the divorce, nor use any reason for a divorce as a factor for determining the amount of spousal support to be paid.

 

One exception to this rule is that if a former spouse, after marriage, lives with another person in a romantic relationship, then there is a presumption that he or she has a reduced need for spousal support.

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Temporary v. permanent spousal support?

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Temporary spousal support is an initial support order that is designed to support a former spouse until the underlying case is completed (i.e. divorce, legal separation, or dissolution of a domestic partnership).

 

Permanent spousal support is a support order after a negotiated settlement or a after a full hearing on all of the relevant support factors.

 

Note: Temporary spousal support is generally, though not always, higher than permanent spousal support orders because the Court has not had an opportunity to review the relevant factors associated with setting of permanent spousal support. This is why the former spouse that is paying spousal support will usually, but not always, want to proceed to a trial on the issue of spousal support.

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How is spousal support calculated?

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The amount of a temporary spousal support ordered is calculated upon limited factors (i.e. paycheck stubs, tax returns, statements regarding income of the respective parties, etc.).

 

The amount of a permanent spousal support ordered is calculated upon many factors presented to a family law judge at a trial on the issue (i.e. respective debts of the parties, education level, market value of a separate property business, age of the parties, etc.).

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Note: When determining a temporary spousal support amount the Court utilizes a preset formula that primarily factors the incomes of the parties. As stated, for permanent spousal support, the Court will consider other evidence, including assets and debts of the parties, length of the marriage, income earning abilities of the parties, educational backgrounds of the parties, etc. In fact, It is not within the judge’s discretion to use a formula to determine an amount for permanent spousal support.

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Can the amount of support be modified?

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Generally, both temporary and permanent spousal support orders may be modified, unless the parties have agreed to close “jurisdiction” over the issue.

 

To change a spousal support order, the requesting spouse will need to show a change of circumstances, such as a change of income for either spouse. 

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Note: Voluntarily quitting a job will not necessarily lower or increase a spousal support order.

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Do I have to pay spousal support if I retire?

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If you are of retirement age and retire, the Court may look at your reduced retirement income and reduce a spousal support order accordingly. However, before doing so, the Court will have to look at all the relevant factors to justify a downward modification of spousal support. Of course, if part of a person’s retirement is paid to his or her former spouse, then that amount paid to the former spouse may factored in the calculations that determine the amount of spousal support that should be paid, if any.

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Long term marriage v. short term marriage?

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In California, a long term marriage is legally defined as a marriage that lasts ten years or long from the date of marriage to the date of legal separation. A short term marriage is defined as a marriage that lasts less than 10 years from the date of marriage to the date of legal separation. However, in unusual circumstances Courts are allowed to find that a marriage was “long term” even if the marriage was less than 10 years.

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How long will I have to pay spousal support?

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Generally, if your marriage is a “short term” marriage (see above for definition), the obligation to pay spousal support, if any, continues for half the length of the marriage.

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For example, if you were married for 6 years (a short term marriage) a Court will likely order that spousal support be paid, if at all, for up to 3 years. For long term marriages, there is no time limit on the duration of the obligation to pay spousal support.

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Can a spouse waive spousal support?

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Yes. Spousal support can be waived before marriage, during marriage, or after marriage. Waiver of spousal support, means to give up the right to receive spousal support. This is usually done through premarital (prenuptial), inter-marital (postnuptial), or post-marital agreements.

 

Note: Strict procedural rules must be followed to effectively waive the right to receive spousal support. In fact, any person, who is not represented by a lawyer at the time that he or she waives spousal support, may have that waiver deemed ineffective. See Prenuptial Agreement for further information.

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Can spouses agree on a support amount?

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Yes. Spousal support amounts can be agreed upon and determined by the spouses. The amount of spousal support can be predetermined through a prenuptial agreement or an inter-marital agreement, or the amount can be agreed upon after marriage through an agreement of the parties (marital settlement agreement).

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For example, the spouses may agree on a “buy out” of spousal support, where one spouse makes a one-time payment of spousal support to the other spouse.

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Do I pay support if my ex-spouse remarries?

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No. If you are paying spousal support to a person, and that person remarries, you will no longer be required to pay spousal support to that person. However, spousal support orders will not automatically terminate. The person paying spousal support must request an order (RFO) from the family law court to modify and terminate his or her spousal support when his or her former spouse remarries.

 

Also, if your spousal support order is paid by wage garnishment, it may require obtaining a new order to stop the support payment. If you have overpaid spousal support, you may file a request with the Court to seek repayment of any amount overpaid. Finally, if there are arrears (past due payments of spousal support), then those arrears must still be paid as spousal support even if the payee remarries.

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Can I claim support payments on my taxes?

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No, court ordered spousal support payments are no longer tax deductible. However, evidence of spousal support payments should be documented (i.e. check, bank account transfer, wage garnishment, etc.) because the calculation used to determine spousal support must be evidenced by documentation. Also, spousal support payments are no longer taxable income for the receiving spouse.

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Note: The law on tax deductible spousal support payments is always in flux. It is important that you consult with a family law lawyer, or a tax professional, before deducting, or not deducting, spousal support payments.

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Do I pay support if I am legally separated?

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Spousal support laws apply to legal separation cases in the same way and manner that they are applied to divorce cases (dissolution of marriage).

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Do I pay spousal support if I get an annulment?

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No. An annulment should void the obligation to pay spousal support. However, a judge considering the separation of property and debts acquired during marriage, which is subsequently annulled, may make equitable property awards intended to offset an amount of money that would have been awarded as spousal support if the marriage had not, in fact, been voided through an annulment. For more information, see Annulments.

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Common Law Marriage & Spousal Support:

 

A Common Law marriage is recognized in California, but a Common Law marriage cannot be created in California. Therefore, if spouses were legally and validly married at Common Law in a state that recognizes Common Law marriages, then California will also recognize that marriage as a legal marriage. Therefore, if there is a divorce in California between two persons who were married at Common Law, then California spousal support law will apply to those persons (subject to any alternative agreement provided for in a prenuptial or post-nuptial agreement).

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What if I am a high-income earner?

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The court will use the “guideline support” calculations to determine temporary spousal support. This means that the family law court will primarily look to the respective incomes of the parties to determine and calculate a temporary spousal support order.

 

However, with unusually high income earners, the court may find that the person's unusually high income is far beyond the amount needed to maintain the standard of living during marriage.  With this in mind, the calculation used to determine temporary spouses support could lead to an inequitable amount of spousal support ordered if it were ordered on a permanent basis.

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Note: This is one of the reasons that an unusually high-income earner will often proceed to trial on the issue with all deliberate speed.

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For example, if Jennifer earns a million dollars a year working as a CPA, and her former husband, Jeff, is non-earning couch potato, then Jennifer will likely want to proceed to a trial on the issue of permanent spousal support as soon as possible because permanent spousal support is likely to be less than temporary spousal support. On the other hand, Jeff will want to continue on temporary spousal support orders because the temporary spousal support order is likely to be more than his award of temporary spousal support. After all, in the above scenario, Jeff’s standard of living requires only a couch.

 

Levity aside, it is important to discuss spousal support requirements and options with an attorney who understands the pros and cons of both temporary and permanent spousal support.

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Can I collect spousal support and not work?

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Spousal support is designed to provide a former spouse with enough money, or other financial assistance, so as to enjoy the standard of living that he or she enjoyed during marriage. This usually means that the spouse who earned less during the marriage is the person who receives spousal support and the spouse who earned more money during the marriage is the one who is ordered to pay spousal support.

 

However, there are several exceptions to this situation. For one, a person who is independently wealthy, but who otherwise did not work during the marriage, could be ordered to pay spousal support to his or her former spouse even if his or her former spouse earned more income during the marriage. This is because the standard of living enjoyed before marriage does not mean that one spouse may continue to not work while expecting to collect spousal support.

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For example, if Jennifer earns $400,000 a year as a trust-fund child, and her former husband, Jeff, earned $600,000 a year working forty hours a week as a steel worker, then then court may award spousal support to Jeff despite the fact that he earned more during the marriage. This is because the court recognizes Jeff’s hard work against Jennifer’s non-work during the marriage, which was required to maintain the couple’s million dollar a year income. Of course, every case is different, and other factors or circumstances could lead to a different result.

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Also, if a person who is receiving permanent spousal support does not attempt to make himself or herself self-reliant (if possible), then the family law court could order a downward modification of permanent spousal support.

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For example, if Jennifer is unemployed and receiving permanent spousal support from her former husband Jeff, and Jennifer refuses to find gainful employment or educate herself so as to find future gainful employment, then Jeff could request and order (RFO) to have his spousal support obligation reduced or stopped.

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Note: The family law judge will generally give the person receiving permanent spousal support a warning that he or she should not expect to live on spousal support for the rest of his or her life (even though the award is for permanent spousal support). This is known as a “Gavron Warning.” This warning from the court puts a person on notice that he or she is expected to make reasonable efforts to become self-supporting in a reasonable amount of time and that if he or she does not make reasonable efforts to become self-supporting the court could reduce or terminate his or her award of spousal support. In practice, a “reasonable amount of time” is determined on a case-by-case basis.

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Finally, separate property that generates income may be used to calculate spousal support in some situations. For more information on when separate property that generates income may be used to calculate spousal support, contact our divorce and family law lawyer for a free consultation.

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Spousal support & domestic violence

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If the person who is receiving spousal support is criminally convicted of a domestic violence crime against the person paying spousal support, then the court could terminate spousal support obligations for the paying spouse.

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For example, if Jennifer is paying spousal support to her ex-husband Jeff, and Jeff is subsequently convicted of a domestic violence crime against Jennifer, then Jennifer could be relieved of the duty to pay spousal support to Jeff.

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Note: A criminal conviction of a domestic violence crime, for purposes of modifying a spousal support obligation, include, but are not limited to, inflict corporal injury to spouse (PC 273.5(a)), domestic battery on a spouse [or cohabitant] (PC 243(e)(1)), and more. However, if the receiving spouse is not convicted of a domestic violence crime in criminal court, but he or she is nevertheless restrained by a domestic violence restraining order (DVRO) in favor of the paying spouse, then the court will not likely relieve the paying spouse of his or her spousal support obligations.

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How to Collect Unpaid Spousal Support

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When a person fails to pay a spousal support order the receiving party may petition the court for a wage garnishment (earnings assignment), an action for contempt of court, and/or a petition for civil penalties and an award of attorney fees (the fees paid to an attorney to assist in the collection of the unpaid spousal support). All of these remedies can have severe negative repercussions if not handled correctly; therefore, if is very important that a person seeks the guidance of a divorce and family law attorneys before proceeding on any attempt to collect unpaid spousal support (arrears).

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To learn more about spousal support (alimony), contact our divorce and family law attorneys today. Our divorce and family law attorneys have successfully handled hundreds of cases in all San Bernardino and Riverside County Courts. We provide discreet and free consultations with a lawyer (not a paralegal) and we are available to discuss your options six days a week (Mon – Sat) from 7:00 a.m. to 7:00 p.m. Call today!

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909-725-8199

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