Divorce and Alimony: California Law

Are You Facing a Divorce?

At Kaspar & Lugay, LLP, we are exposed to divorce cases daily. High-income power couples, low-income families with little to split, stay-at-home parents, and high-level business owners—we’ve seen how divorce affects them all. Our attorneys strive to ensure the divorce process moves as smoothly as possible in order to respect the serious personal ramifications on you and your family.

To that end, we have provided this guide to give readers the basics on what they need to know about alimony. Definitions, who pays it, how it is calculated, and how certain factors affect it. We will analyze both the philosophy and the hard facts, including the formulas most California courts will use to calculate how much alimony a spouse will pay or receive.

Table of Contents

  • Introduction: What Is Alimony?
  • Permanent vs. Temporary Alimony
  • How Alimony Is Calculated
  • Alimony Calculation Formula
  • Do I Have to Pay Alimony to an Abusive Spouse?
  • Short Term Marriages vs. Long Term Marriages
  • Modifying Alimony
  • Terminating Alimony
  • How Long You Will Need to Pay Alimony in California
  • Why You Need an Alimony Attorney
  • Helpful Resources

What Is Alimony?

Alimony, or spousal support, is this: money paid from one spouse to another to ensure divorce does not impoverish either of them. California family law orders spouses to pay alimony in order to “maintain the standard of living” for each party. The reasoning behind this law is a protective measure. When one spouse makes significantly less money than the other, divorce could possibly cause him or her to be forced into difficult financial circumstances without the help of alimony.

Without alimony, spouses with less income or marketable skills would be forced to choose between severely lower standards of living or living in irretrievably broken marriages, or worse, be made hostage to the desires or whims of the higher-earning spouse.

Alimony is a way for the law to level the playing field between spouses and prevent unjust power dynamics based on money. It is calculated taking into account specific factors, some of which are hard to quantify. Some courts, like the Marin Family Law Court, use hard formulas to determine how much alimony is owed by either party.

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Permanent vs. Temporary Alimony

There are two kinds of alimony: permanent and temporary. Don’t be intimidated by the word “permanent”—California courts rarely provide legitimately permanent support, especially in cases where both parties are relatively young and healthy. Courts presume that supported spouses are making the attempt to become financially self-reliant. Alimony is intended to help spouses become self-sufficient after a divorce, which means spouses are obligated to attempt to reach financial independence at some point; for example, within one year of a two year marriage.

However, in cases where the supported spouse is simply too ill or elderly to support themselves, the court may grant permanent alimony. Divorce attorneys would be able to argue for the necessity of permanent or long-term alimony, especially if the court decided to subject the supported spouse to a vocational evaluation from a court-appointed vocational counselor.

  • Temporary alimony is support paid during the divorce process. It is intended to “maintain the status quo” for both spouses while the divorce is being determined.
  • Permanent alimony is also known as a post-divorce settlement; it is the court-ordered support you pay until the date the order specifies (subject to court modification).

Permanent alimony is potentially ongoing. California courts retain jurisdiction (authority) to modify, terminate, or extend alimony payments based on the 15 factors listed in the next section. In marriages “of long duration,” (which commonly means “more than 10 years long”), their jurisdiction is indefinite unless the spouses agree to end spousal support together.

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CA Code, Spousal Support & How Alimony Is Calculated

California statutes that define and codify alimony are California Family Code Sections 4320-4326. They provide a clear breakdown of every factor that a judge will use to determine how much alimony a spouse will be liable to pay or receive. After we list these out, we will take a closer look at some of the more common factors that spouses worry about during divorce.

The factors that determine permanent alimony are divided by the following:

Current Economic Situation

  • How Much Each Spouse Makes: The earning capacities of both parties, particularly with an eye to maintaining the lifestyle and standard of living each is accustomed to.
  • Impaired Earning Capacity: The effect of unemployment on the supported spouse’s prospects, particularly when they remained unemployed to take care of the household.
  • Education & Training: How much the supported party contributed to or made possible the education, training, and career of their spouse (at the expense of their own career).
  • Ability to Pay: The ability of the supporting spouse to actually pay alimony without hurting their own standard of living; takes into account their earning ability and their assets.
  • How Much Is Needed: Takes into account the standard of living for the duration of the marriage and how much it would take to maintain that standard.
  • Total Assets & Liabilities: Takes into account the total amount of assets or loans belonging to each party, including separate and community property.

Future Economic Situation

  • Ability to Self-Support: The idea behind alimony is to allow the supported spouse to achieve self-sufficiency within a “reasonable amount of time,” which the court dictates is half the length of the marriage (except in cases of marriage of long duration).
  • Potential Employability: Marketable skills of the supported spouse, how much it would cost to become employable, and the current market for the supported spouse’s skills.
  • Tax Consequences: How divorce will affect the taxation of either party.

Familial or Social

  • How Long the Marriage Lasted: In California, this is particularly relevant.
  • Child Care & Employment: Takes into account how the supported party’s employment would affect the well-being of the children in his or her care.
  • Age & Health: The ability to work, earn, and live well of both spouses.
  • Hardship: The court will take into account the difficulties that both parties face.

Criminal or Damaging

  • History of Violence: Either party’s record of domestic violence will be taken into account.
  • Criminal Convictions: This will affect the payment of alimony, especially if the conviction involves domestic abuse or sexual assault. More information about this is provided below.

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The California Family Court Formula

While the above factors may seem like a great deal of variables, the court will usually determine temporary alimony owed to a spouse on a simple formula. For example, courts in California may depend on a formula to decide how much alimony a spouse must pay through the course of a divorce hearing. This formula will form the base payment, but it is subject to change by the courts. Your divorce attorney can argue to raise or lower the base payment by demonstrating that the calculation does not match your specific divorce situation.

50% of Paying Spouse’s Net Income – 40% of Supported Spouse’s Net Income = Temporary Alimony

For example, if Mike makes $150,000 a year net income, and Sally makes $75,000 net income, then she would be entitled to $45,000 of temporary alimony a year, or $865 a week. If they had kids, child support would be calculated first, then alimony would be calculated based on the paying spouse’s net income after child support.

The court can order retroactive alimony. That means if a paying spouse is not ordered to pay alimony until three months into the divorce process, the court has the power to subject them to three months’ worth of alimony back pay. If you have been suffering as a result of lack of support, you may be entitled to a larger sum of alimony than the formula indicates.

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Do I Have to Pay Alimony to an Abusive Spouse?

The Code specifically frees injured or abused spouses from being obligated to pay spousal support. The circumstances that free supporting spouses from paying alimony include:

  • Attempted murder
  • Solicitation to commit murder
  • Sexual assault
  • Battery
  • Assault of any kind

In matters of domestic violence, even when the abused spouse withdraws charges, alimony calculation may still be affected. The Code also allows the court discretion regarding other relevant factors, as every marriage is different and the factors involved will be radically different every time. Keep in mind that while criminal convictions will matter to alimony agreements, alimony is not punitive (although either party may want to believe that it is).

Many supporting spouses feel they are being punished, but ultimately, alimony is intended to allow both parties to divorce amicably and equitably, to allow them to live their lives apart from each other as peacefully as possible. That’s why alimony is prohibited to abusive or criminally-convicted spouses; the well-being of the abused becomes the court’s priority.

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Short-Term Marriages vs. Long-Term Marriages

The length of your marriage is often a major factor when it comes to alimony decisions. After all, it is common that the lower-earning spouse has made major concessions to allow the higher-earning spouse to pursue a career—this is especially true for long-term marriages. That’s why courts retain indefinite jurisdiction automatically for marriages of long duration.

The terms of “indefinite jurisdiction” are extremely flexible. While some divorce blogs will treat 10 years of marriage as a legally-binding milestone, it technically isn’t. California code simply says marriages longer than 10 years require no proof to be considered “of long duration” with regard to deciding the court’s authority to order or modify support. It still has the authority to retain jurisdiction over shorter marriages as though they were of long duration.

However, as a practice, courts will treat marriages shorter than 10 years as short-term. This means their jurisdiction to modify alimony agreements will last for as long as half the duration of the marriage. If you were married for six years, your court may only have jurisdiction to change alimony for three years maximum. This usually also means alimony will last that long.

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What Does It Take to Modify Alimony?

For as long as the court has jurisdiction, either party may argue that changing circumstances dictate modification to alimony (either to raise it or lower it). Changing circumstances would include a severe loss of income for the paying spouse, or a lesser need of it for the supported spouse. It would be up to your divorce attorney to help you present your case for modified alimony. However, alimony modification is not possible if both spouses have agreed (either in writing or in oral agreement before a judge) not to leave alimony open to modification. Commonly cited reasons for modification include:

  • Loss of income
  • Change in lifestyle
  • Sudden increase in income
  • Child support modifications

Keep in mind that for the time period between your changed circumstances and the day you choose to file for modifications, the paying spouse is still obligated to pay the court-ordered amount. If the paying spouse waits several months after the loss of a job before suing for modifications, then he or she will still owe the regular alimony amount for that time period.

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Terminating Alimony

Courts sometimes choose to terminate alimony rather than modify it. These circumstances must be far more permanent than loss of job, as termination of alimony is final. As mentioned above, one client had to join a monastery for a court to feel ending alimony was justifiable. Possible reasons for terminating alimony include:

  • Remarriage of the recipient
  • Cohabitating with a nonmarital partner
  • The death of the recipient or payor
  • The spousal support order ends on a certain date
  • The spouses both agree to terminate alimony

The spouses can agree in writing to continue alimony past any of these conditions; in some cases, clients may want alimony to continue going to their estate after death. However, no court will order a spouse to continue pay alimony if any of these conditions are true.

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How Long Do I Have to Pay Alimony?

Divorce courts only have authority over marriages that they have jurisdiction over. In the cases of short-term marriages—which includes in most cases marriages less than 10 years long—the court’s jurisdiction will be limited to the length of the alimony agreement.

As mentioned before, some cases involving marriages of 10 years or less will have an end-date for the alimony payments. Once this date is reached, alimony will automatically cease, and the court will no longer have the authority to demand further payment. California courts, however, reserve the ability to label any marriage as long-term.

When alimony agreements have no specified end date, this does not mean payments will continue forever. This is simply a way for the court to reserve the right to revisit alimony at any time, either to modify it or terminate it at a later date. For virtually all marriages past 10 years in California, the courts will have indefinite jurisdiction—which means either the court or both parties must be willing to terminate alimony before jurisdiction ends.

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Why You Need a California Alimony Attorney

In California, court decisions regarding alimony have the power to change your life for a prolonged amount of time. Alimony can mean the difference between living in financial hardship and living stress free for decades. While the courts want to find an amount that benefits both parties, that is incredibly difficult for any judge to determine accurately. How your judge will determine your alimony is based on 15 hard-to-quantify factors—which means it will be on your shoulders to make a case for your side of the story.

Alimony attorneys understand the intricacies of divorce law, which we’ve only just touched upon here. In order for you to ensure an alimony agreement that is accurate, beneficial, and viable long-term, you need an attorney who will fight for your interests with integrity and creativity. Our alimony attorneys bridge the gap between the law’s requirements and your daily life. That means we present your story to the court in a way the law will understand and reward—making sure that you aren’t burdened by your divorce for the rest of your life.

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Office Locations

Marin

770 Tamalpais Drive
Suite 200
Corte Madera, CA 94925
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Phone415-942-9695
Fax415-366-1899
 

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1606 Main Street
Suite 207
Napa, CA 94559
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Phone707-310-8522
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Walnut Creek

1990 N California Blvd
8th Floor
Walnut Creek, CA 94596
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Phone925-660-7627
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Santa Barbara

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Suite 1
Santa Barbara, CA 93101
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Phone805-719-7841
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