Most commonly asked questions about divorce answered - the Spousal Support in California FAQ
Like child support, spousal support (or alimony) provides you with financial support during and after a divorce or legal separation. Typically, California family courts award spousal support when one spouse was the primary wage earner in the home and the other spouse is unable to meet his or her financial needs without assistance.
There are two types of California support:
- Temporary support or “pendentelite” support: Alimony payments awarded while a divorce is pending.
- Permanent support: Alimony payments made after a divorce or legal separation is finalized. (“Permanent” support may not mean a lifetime obligation.)
California calculates temporary and permanent support differently. For temporary support, the family court balances what you need and what your spouse can pay. Typically, the court uses California’s alimony calculator to determine an appropriate payment amount.
For permanent support, the court cannot use the state’s alimony calculator. Instead, the family court weighs a series of factors, including:
- The marriage’s length,
- Each spouse’s income and earning potential,
- Each spouse’s expenses,
- Their lifestyle (quality of life) during the marriage,
- Whether either spouse has physical or mental disabilities,
- Whether children are living in the home, and
- Other relevant factors.
If a spouse’s income is variable, the calculations can become especially complicated. If your spouse is self-employed, has commission-based employment, or other forms of variable income, contact a lawyer for assistance.
There are multiple factors that impact the duration of spousal support. First, California law limits it for shorter marriages. Your entitlement to it varies, depending on whether you were:
- Married for less than ten years: There is a rebuttablepresumption that support is paid for half of the length of the marriage. (For example, if the marriage lasted for six years, alimony is typically for three years.)
- Married ten or more years: The family court retains jurisdiction over support payments indefinitely (unless the spouses negotiate a shorter term). In other words, you could pay alimony for life.
However, the length of the marriage is not the only factor the court considers.
The court must also evaluate each spouse’s financial resources and earning potential. Even if you the marriage lasted for ten or more years, lifetime alimony is relatively rare. For example, a stay-at-home mother with limited education and training may be entitled to alimony for a very long time. But, a spouse who is completing her MBA (which may significantly increase her earning potential) may eligible for alimony for a shorter period of time.
Finally, most spousal support orders are modifiable. If you or your spouse’s financial circumstances significantly change, you may be able to reduce or terminate alimony payments.
Under California law, family law judges cannot consider gender during a divorce, legal separation, or annulment. In fact, judges receive training on how to avoid gender bias. However, subtle bias does exist. For example, a judge may struggle with a stay-at-home father’s request for spousal support because of latent gender bias. If you want to avoid gender bias or discrimination in your claim, consider hiring an experienced lawyer. A lawyer can help you present the best possible case for (or against) support and ensure that bias does not impact the award.
Unlike child support, court-ordered spousal support is taxable. Therefore, recipients must pay income taxes on their support payments. And, if you pay spousal support, the payments are tax deductible.
Under certain circumstances, you can modify a permanent spousal support order. Typically, you can amend a support order if:
- The current order was not designated as “non-modifiable,” and
- There are changed circumstances that merit modification.
A material change in circumstances may involve a significant change in a spouse’s income, an unexpected disability, or loss of health insurance. If you believe you qualify for a modification of your support order, contact a lawyer for a personalized assessment of your claim.
If an ex-spouse remarries, his or her entitlement to spousal support typically ends. There is one primary exception to this rule. Support payments must continue if the marital settlement agreement clearly states that remarriage does not terminate alimony obligations.
If your ex-spouse receives support and moves in (cohabitates) with a significant other, you can petition the court to reduce or terminate his or her spousal support. When an ex-spouse decides to cohabitate, there is rebuttable presumption that his or her boyfriend or girlfriend is providing financial support. However, if there is evidence that the new couple is not sharing expenses and income, support payments may continue (since there has not been a significant change in the spouse’s financial circumstances).
If there is documented domestic violence in your marriage, the family court must consider the impact of the abuse (including emotional distress) when awarding permanent spousal support. And, if your spouse has a conviction of domestic violence in the past five years (and you were the victim), there is a rebuttable presumption that he or she is ineligible for spousal support.
In California, a wife may be entitled to 50% of marital assets, 40% of her spouse’s income, as well as primary child custody. These benefits are determined by the length of the marriage and the income of each spouse, among other considerations.
In general, there are various ways for an individual to avoid paying spousal support. You can plan ahead, have your attorney resolve the issue or suggest a termination date during the divorce, or you can request a modification or termination following the divorce.
In California, it is lawful to force your spouse to vacate your house and stay away for a specified period of time. However, such a court order can be obtained only if the individual demonstrates violence or threats of attack in an emergency or the risk for physical or emotional injury in a non-emergency.
Claims for spousal support in California are frequently contentious and emotional. An experienced alimony lawyer can help you build a strong case for or against support payments. At Family Law Matters, we provide our clients with compassionate care, tenacious representation, and detailed analysis. Contact us for a consultation.
After serving your spouse, they will have 30 days to file a parallel set of divorce documents referred to as the response. They, too, must file their paperwork with the court clerk. If your spouse does not timely file a response, the court has the authority to enter a default judgment against them.