No one plans on a marriage going wrong and ending in divorce, but when it happens, one of the major issues that is likely to be involved in the process is determination of spousal support, also called "alimony."
Understanding what exactly alimony is, how it is calculated, how long it lasts, and other related issues is important as you go through a divorce. Otherwise, alimony could be unfairly determined, with important factors left out of view: that could mean you are not getting the support the law entitles you to OR that you are being forced to pay more support than you rightly should have to. And the duration of the spousal support could also be miscalculated without the help of an experienced family law attorney.
At San Diego Divorce Attorney, we understand how alimony is assessed down to the details, and we have helped ensure a fair, reasonable outcome to divorce proceedings (as concerns alimony and other financial issues) for numerous clients in San Diego and the whole of Southern California.
To learn more or for a free legal consultation on your case, do not hesitate to contact San Diego Divorce Attorney today by calling 858-529-5150.
What Is "Alimony"?
In a very simple definition, we can say that alimony is spousal support that must be paid by one former spouse to the other in the aftermath of a divorce.
This payment is normally done by regular, monthly payments that are withheld from one's paycheck and transferred to the supported spouse.
However, sometimes alimony can be paid in a s single lump sum or in the form of extra property (such as real estate) being given to the other spouse when marital property is divided. Monthly alimony payments are by far the most common, while other methods are considered "alternative" options that both spouses and the presiding judge must agree on.
Most alimony is only "temporary," being paid for a specified number of years as determined by the court; but there are cases where alimony can be permanent as well.
Now, given what we've said about alimony so far, one might well ask, "Why does anyone have to pay alimony? What is it's purpose?" The answer is that its purpose is to help the spouse with the lower income maintain the standard of living he/she had during the marriage so that he/she has time to re-adjust to life as a single again.
Thus, alimony is by nature not generally meant to be permanent - and only in cases where the supported spouse is handicapped or has some kind of permanent need for support would it be anything but "transitional."
How Is Alimony Amount Determined?
First of all, spousal support is not automatic just because there's a divorce. There are some cases where no alimony at all will ever be paid by either spouse. This could happen for a variety of reasons, including both spouses having relatively equal incomes, the marriage having been exceptionally short, or a special deal having been reached where other property is given in lieu of actual alimony, as such.
But typically, the spouse with the higher income will have to pay at least some alimony to the lower-earning spouse for a period of time, and the payment will be made every month. How, in that case, is the alimony amount calculated?
The answer is that there is a formula used for general guidance only in cases of temporary spousal support. It works like this: 50% of the supported spouse's wage is subtracted from 40% of the supporting spouse's wage.
But in reality, that formula is only a kind of "legal rule of thumb." Other factors almost always enter into the equation and affect the tally. These other impinging factors include:
- The loss of earning ability or "immediate employability" by the spouse who, perhaps, stayed home to care for children instead of pursuing his/her career for years and years during the marriage.
- Any help the supported spouse may have given to the supporting spouse in the attainment of his/her degree, professional license, or work training.
- The capacity of the supported spouse to work and earn income, even if he/she has custody of children. The "marketable skills" of the supported party will factor in here.
- The actual needs of the supported spouse and the actual ability to pay of the supporting spouse.
- The length of time that the marriage lasted. The longer it lasted, the more support is likely to be required.
- Any domestic violence that may have been committed against the supported party by the supporting party.
All of the above-listed factors, along with the incomes of each spouse and the "guidance formula" provided by the state, "count" in the context of the "standard of living enjoyed during the marriage."
Standard of living is a somewhat fuzzy term, legally, but realize that it doesn't just refer to a simple income-minus-expenses math equation. It takes more into account, including things like how often the couple ate out, where they usually shopped, what kind of school their children attended (private or public), what sort of house and neighborhood they lived in, and more. It has the idea of a general "station in life" or "economic class" (lower, middle, upper) that the family lived in.
How Is Alimony Duration Determined?
As mentioned above, California state policy is not favorable to permanent alimony except in very rare cases. In earlier days, lifelong alimony was not uncommon, but since the 1990's, it truly has become uncommon in California.
The idea is for spousal support to continue only so long as it is "necessary" for the spouse with the lower income and who lost some of his/her marketable skills caring for children for years, to re-adjust to life as a single. Nor is it allowed that a person can simply choose to not work or try to develop marketable skills because he/she would rather just live on alimony for the rest of his/her life.
The "rule of thumb" for duration of alimony in California today is half the number of years you were married, if the marriage lasted less than 10 years. If it lasted longer than 10 years, then there is no specific formula, and the attorney of the supporting spouse must demonstrate that the alimony will no longer be necessary at some future date.
But beyond these general considerations, there are specific events and changes that can end or diminish alimony payments. These include:
- The legal obligation to pay spousal support ends when the supporting spouse retires. He/she can legally retire (for alimony purposes) at age 65 or older.
- If the supported spouse remarries or starts living with another partner, this can be a basis for ending the spousal support.
- If the supported spouse starts to earn a lot more money, then the support may be ended or at least substantially diminished to reflect the new situation.
What Happens When Spousal Support Is Not Duly Paid?
It is not uncommon for either or both parties to fail to follow the court order and abide by state law regarding spousal support payments. When this happens, the ill-affected party can file a complaint with the court and seek a redress of the grievance.
Oftentimes, a supporting spouse suddenly stops sending the alimony. Maybe it was not being garnished from his/her wages, or maybe he/she got a different, lower-paying job, or maybe the supporter is currently unemployed.
The fact is, unless the court changes the alimony order, it remains in effect. A verbal agreement between the spouses is not enough to change the required alimony. And if the court finds that someone is purposefully remaining unemployed or under-employed to avoid paying alimony, it can "impute income" to him/her and base alimony payments on that amount.
Also note that filing bankruptcy will not cancel any obligation you have to pay alimony, nor will it affect child support. And back payments will not be cancelled either.
If you think your X-spouse is wrongly depriving you of court-ordered alimony payments, you can contact us or call the Department of Child Support (this department, despite its name, also handles alimony issues.) Or, you can go directly to your Family Law Facilitator at the local Superior Court. But it's best to get legal help from an experienced attorney when making these kinds of complaints, to ensure you maximize your chances of getting the issue resolved.
Other Frequently Asked Questions Related to Alimony
Though we covered most of the basics of alimony in California above, you may well still have some lingering questions. Contact us anytime for answers to any and all divorce and family law related issues, but here are some answers to some common alimony FAQs:
- Can an X-wife have to pay alimony to her X-husband? Yes, it is possible for either spouse to have to pay alimony - it is not determined based on gender but on income and other economic factors.
- Does it matter who is at fault in the divorce when it comes to alimony? No. California has a no-fault divorce law, which means that alimony is not affected by whose fault the divorce was. Even if your spouse cheated on you or is living with another partner right now, he/she does not have to pay extra alimony on that account. But if you were the victim of domestic violence by your spouse, that can increase the alimony.
- Does child support affect alimony in any way? Yes. If you have custody of any children from the marriage and receive child support, your alimony payment will likely be less than if you didn't get child support. But, if the child support ends, your alimony will probably go up, at least a little.
- What should I do if I lose my job and I can't afford the alimony? You should immediately file the necessary paperwork at the local Superior Court and contact a good lawyer as well. Otherwise, you could get in trouble for failing to pay the required support.
- Do I have to pay back payments for past spousal support I missed? Yes, you would be required to pay all back payments, plus a 10% interest (per year) on the unpaid amount.
- Can I stay on my spouse's medical insurance after the divorce? Maybe. It depends on the type of insurance your spouse and you had during the marriage and if it is work-based. The COBRA Act allows you to apply to stay on for up to 3 years at rates not much higher than your husband would pay having an employee-based discount. But, you won't count as a "spouse" on the plan anymore and you would have to pay the (discounted) premium yourself.
- What if the supported spouse is not actively seeking work and is fully able to do so? You could file a complaint with the court and seek to amend this by having the alimony amount reduced accordingly.
- How does alimony affect taxes? Currently, the spouse paying alimony can deduct it from his/her taxes; while the spouse receiving alimony payments must report them to the IRS. However, this is set to change on 1 January, 2019, and thereafter, the taxes will be paid by the supporting spouse and the alimony amount duly reduced.
- Can I get alimony if I get an annulment? No. California views annulled marriages as legally having never happened. Thus, you have to handle division of property yourself and you can't get spousal support. But, you can still collect child support if you have a child from the "non-marriage" and you have custody.
- What happens to alimony when the supporting spouse retires? The obligation to pay alimony ends upon retirement at age 65 or older, but a petition must be filed with the court. You can't simply stop paying. And under certain circumstances, alimony could be ended or modified after an early retirement OR it could continue (if at a reduced rate) after a 65-plus retirement. The court has discretion and a process so one can't just assume the outcome and cease payments.
Contact Us Today for Assistance
At San Diego Divorce Attorney, we have been serving the San Diego and Southern California Area for many years with top-tier legal advice, representation, and negotiation assistance in all matters related to divorce and family law.
We stand ready to take your call and help you better understand California's complex alimony and divorce laws and give you a free, no-obligation legal consultation. Call us today at 858-529-5150 and we will be happy to assist you!