Many spouses ask “am I entitled to alimony?” In California, the court will decide if you are eligible to receive alimony (it is also called spousal support (a term we will use here). It’s easily understandable that, although almost everyone would like to receive monthly payments from their former spouse, not all spouses are entitled to receive alimony.
Generally, alimony is granted when you are unable to meet you daily living needs and your former spouse can afford to help pay you.
You should understand the important distinction between temporary spousal support and permanent spousal support. Temporary support is paid to you during the time your case is pending before the court. The way it is calculated is very different than the way permanent support is calculated. On the other hand, permanent support will be paid after your case has been decided by the judge or your final agreement has been accepted by the court. Once support has been ordered by the court, it will be part of your final divorce or separation judgment. Support that is ordered is called “permanent (or long-term) spousal support.”
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The purpose of alimony
Alimony is designed to allow the former spouse to keep the same marital standard of living that they had while they were married. The ultimate goal of alimony, however, is that the spouse receiving support will be able to support themselves within a reasonable period of time. At some point, if possible, the spouse receiving support has an obligation to be self supporting–they cannot be dependent upon their former spouse forever. In certain situations, if you were a homemaker for many years, however, becoming self-supporting may not be realistic and the court will take that into consideration.
Am I entitled to alimony?
For temporary spousal support, most courts will use a computer calculation that contains a formula to calculate the amount. The formula used in California to determine the correct amount of temporary spousal support is usually either of one of two computer programs– Dissomaster or X-Spouse (there may be other less commonly used programs). These programs are primarily used to calculate the guideline amount of child support, but have an additional calculation for spousal support. The same framework used to calculate child support, such as tax status, deductions and exemptions, are used to figure out your spousal support. Basically, if the court needs to determine the amount of child support in your case, then the court will calculate your spousal support at the same time and in the same program.
In California, however, your judge is prohibited from using the computer program to determine your permanent alimony and, thus, may only use the program for temporary support.
As a general rule, in many counties in California, your temporary spousal support will be calculated by subtracting 50% of the lower-earner’s net income from 40% of the higher earner’s. The computer programs described above are used to calculate your exact amount, including your net disposable income, which takes into account your tax status, tax payments, child support, deductions and other variables.
Am I entitled to permanent alimony?
First thing you need to understand is that even “permanent” spousal support may not last forever. At the end of your trial, your judge will make a decision in the form of an order about your alimony moving forward from that point in time. Usually, that order can be changed by the court at a future date after another hearing (We will discuss the reasons for ending alimony in another post). On the other hand, you can come to an agreement or settlement with your spouse that your permanent spousal support may never be changed or modified. But, unless your spouse agrees never to try to end your permanent support, the court will not make an order after a trial that your support cannot be changed or modified.
The general rule in California is that your permanent alimony will last for one half the length of your marriage for a short term marriage, which is defined as marriage that ends in less than 10 years. Usually, in long term marriages–those that are over 10 years–the court will not set an end date on your alimony. In that case, your spouse will have to try to end your alimony by arguing to the court that there has been a material change in circumstances that warrants an end to your alimony. The court, however, does that discretion to set an end date in your final order. No matter what, your alimony will terminate at the death of either spouse or remarriage of the spouse receiving support.
Calculating permanent alimony
Remember, the court will not use the computer program it used to calculate temporary alimony when calculating your permanent alimony. The court must use a set of factors the state legislature has laid out to determine the correct amount. Those factors will conclude what your standard of living was during your marriage are contained in Family Code Section 4320.
The goal of the legislature in setting out the factors in Family Code Section 4320 is to try to help the court come to a reasonable alimony order after taking into consideration the complete picture of your marital situation. In short, even after examining all of the factors in Section 4320, the basic issue comes down to two major considerations for the court:
- Whether you have the financial need for alimony; and
- Does your spouse has the financial ability to pay you alimony.
In summary, there is no hard and fast rule about whether you will be able to collect permanent alimony from your spouse. Instead, the court will look into a series of factors.
Factors for permanent alimony
Family Code Section 4320 lays out the following factors the court must consider in setting permanent alimony:
(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
(1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.
(2) The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
(b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.
(c) The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.
(d) The needs of each party based on the standard of living established during the marriage.
(e) The obligations and assets, including the separate property, of each party.
(f) The duration of the marriage.
(g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
(h) The age and health of the parties
(i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.
(j) The immediate and specific tax consequences to each party.
(k) The balance of the hardships to each party.
(l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a “reasonable period of time” for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.
(m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4325.
(n) Any other factors the court determines are just and equitable.
Most important factors for alimony
Although the court is obligated to look at all of the factors outlined in Section 4320, several of the factors are typically more important for the court to examine when considering permanent spousal support.
Throughout your divorce case you will need to provide the court and your spouse with all of your expenses and income. To do this your lawyer will need to help you to gather up all of your bills to prove exactly what your monthly expenses are for your current lifestyle. Include items such as rent or mortgage, utilities, food, clothing, insurance and entertainment. All of your income, either through your employer or your business, must also be provided.
It is also very important to try and remember to provide your lawyer and the court with all of your spouse’s expenses and sources of income. Your spouse is obligated to provide this information to you–just as you are–but you want to make sure that they are not hiding any income items or overstating their expenses. Just as with any kind of litigation, your attorney can also conduct discovery and ask specific questions about these items. A disparity in income and expenses will show the court your need for alimony.
The court may award you alimony if long ago you agreed to give up your job to be a stay-at-home mom and take care of the household. Normally, if you have decided to go back to work, you may be underemployed because of your recent re-entry into the workplace. Your alimony award will provide you with time to get up to speed in the workplace through additional education or experience.
A great disparity in your level of education will be a consideration for the court to grant you alimony. Your spouse’s professional degree that you helped him obtain while you supported him in school will be a significant factor for the court to award you support. In addition, your judge would like to see you choose a career that will allow you to be self supporting and will try to give you the resources to obtain additional education to achieve that goal.
The closer you or your spouse are to retirement age will impact your future financial requirements. The court should consider this in awarding support.
Length of Marriage
As we have shown above, a marriage of less than 10 years will generally have an award of half of the length of the marriage. A marriage over 10 years will usually have an award of alimony for an indefinite period of time.
A medical condition that may prevent you from obtaining full time or even any employment at all will show the court your need for alimony. Provide medical records or even the testimony of a physician to substantiate your claim of being too impaired for work.
California is a no fault divorce state which means that the reasons for your divorce are irrelevant to the judge. Many spouses seem to believe that their spouse’s cheating will mean more alimony for them. They would be wrong in that belief.
But domestic violence or abuse, however, are factors for the court to consider in an alimony award or court order. Document all instances of domestic violence so the court has a basis to believe your claims.