Can I get alimony? Will I have to pay alimony? How much and for how long? These questions are popular inquires for Family Law attorneys.
In California, alimony is referred to as Spousal Support. It is an independent calculation from that of Child Support.
To seek any type of support order–be it Child Support or Spousal Support–one must file a formal request with the Court. This Request must include a sworn statement relating to the facts along with the law supporting the request. Once filed with the Court the matter is set for a hearing.
At the hearing the Court will decide to award (or not) an interim order for Spousal Support. At this stage the Court will most often determine the amount of monthly payments to be made from a computer generated calculation. This “Guideline” amount will last until the parties voluntarily enter into a permanent agreement for Spousal Support or the Court rules on it.
A permanent Spousal Support order is not computer generated. There are a series of factors that the Court must consider under California Family Law Code section 4320 when issuing a permanent spousal support order.
The court looks at the earning capacity of each spouse and whether it is sufficient to allow him or her a similar standard of living as that experienced during the marriage.
Both the amount of the permanent Spousal Support award and how long it will be paid will vary from Judge to Judge. The trial Judge has wide discretion in this area.
An important guideline for the amount of spousal support is based on the couple’s standard of living during the marriage. If the supporting spouse’s income increases dramatically after the divorce, the court is supposed to look only at the supported spouse’s needs based upon the standard of living during the marriage and is not to consider the supporting spouse’s new standard of living.
It is the policy of the State of California that every person should be employed and self-supporting to the extent possible for that person. California Law states that the supported party shall be self-supporting within a reasonable period of time. A reasonable period of time is defined as one-half of the length of the marriage. The law provides, however, that the court may order support for a longer or shorter period of time, depending upon the facts of the case.
Judges around the State strongly encourage unemployed or underemployed spouses to become fully employed to the best of their ability. If this means obtaining an education or training, that spouse is expected to immediately pursue the education and/or employment. This may be difficult for spouses who have not worked outside of the home and are experiencing the trauma of divorce but it does need to be done.
If a marriage is for less than ten years and both spouses are of working age and in good health, the court generally will set a date when the court jurisdiction to award support will terminate. No further support can be ordered after that date. The longest date is usually at the end of one-half of the length of the marriage.
If a marriage is over ten years it is deemed in California to be a “long term marriage”–often the court will not set a spousal support termination date in a long term marriage unless the parties agree to one. The spousal support order, or at least the right to ask for spousal support; may continue until the death of either party, remarriage of the supported spouse or further order of the court.
The court may at some point enter an order that the monthly support will be reduced to “zero” and be “reserved” thereafter until the death of either party, remarriage of the supported spouse, or further order of the court. This means that the supported spouse can come back to court at a later time and ask for support if there is a change of circumstances warranting a reinstatement of the support award, such as disability or loss of job through no fault of their own.
It is important for the supporting spouse to have a “warning” included in any spousal support order directing the supported spouse to seek education, training or employment. This is called a “Gavron Warning.” Otherwise the supporting spouse may be out of luck when returning to court because the supported spouse may take the position that he or she didn’t know they had to pursue an education or work, and therefore spousal support should never be reduced or terminated.
If the parties make any agreements changing a support order they must put it in writing and file it with the court. Many cases exist in which one spouse thought he or she had an agreement to reduce or terminate support, only to find out that the other spouse later states there was no agreement and a Judgment for back support plus interest at 10% per annum can be entered.
Child Support is more predictable because it is always determined on a statutorily based formula. The primary factors affecting the amount of child support to be paid are the parties income and their relative percentages of time with the children. Child support determinations remain with the Court until the Child reaches the age of majority, and this is so, irrespective of any understandings or agreements by the parties to have it be otherwise.