When a marriage begins, it is not only a relational union that commences, but also a financial union. And when a marriage is dissolved in divorce, the financial aspect of the union is also dissolved with it.
If you are getting a divorce in California, either you or your spouse may be entitled, under state law, to receive spousal support (alimony) for a period of time. Yet, the legal requirements and complex elements that go into establishing a valid spousal support agreement require a very special set of legal expertise.
At San Diego Divorce Attorney, we understand the law and commonly accepted (by the court) practices related to alimony determination down to the legal minutia. We are also skilled negotiators and can help you and your spouse reach a workable agreement OR if necessary work to get a court order establishing an equitable alimony judgment in spite of your spouse's lack of cooperation.
For immediate assistance and a free legal consultation in regard to spousal support and other divorce and family law issues, contact San Diego Divorce Attorney today by calling us at 858-529-5150.
The Basics of California Spousal Support
In California, spousal support is not an automatic right to either spouse just because a marriage ends. And when it is granted, it can be to either spouse (it's not always to the wife, as is commonly thought, though that is by far more common).
Furthermore, spousal support is not usually meant to be permanent in California. It is normally a temporary form of monthly support that helps the spouse with the lower income re-adjust to single life.
Also realize that although the determination of spousal support is interrelated, to an extent, to child support, alimony IS NOT child support. You can have child support without alimony OR alimony with no child support.
Spousal support, when it applies, is a right if you get a divorce - but it cannot be obtained in a legal separation unless your spouse agrees to it. Once a legal separation agreement that includes spousal support, however, is agreed to by your spouse and ordered by the court, then it becomes legally enforceable just like with divorce alimony.
Sometimes, spousal support can also apply to annulment cases; or when a restraining order for domestic violence is issued against your spouse.
You may be able to work out a temporary agreement for alimony even while your divorce case is in process; but if your spouse won't cooperate in that way, you may have to wait until the divorce is finalized. It just depends on what the court is willing to impose.
How Spousal Support Is Calculated in California
At San Diego Divorce Attorney, we are fully familiar with all of the details that go into determining spousal support judgments in California. And we can assist you in ensuring that a fair calculation is made that takes all relevant factors into consideration.
First of all, realize that there is a "rule of thumb" formula used in calculating temporary spousal support (that is only for a set number of years). That formula is: 40% of the supporting spouse's income minus 50% of the supported spouse's income.
However, there are numerous other factors brought into play, and the judge does not necessarily have to follow this formula.
Here are the major factors that will typically affect spousal support judgments:
- The duration of the marriage. Usually, if the marriage lasted less than 10 years, it will be half the length of the marriage. And if the marriage lasted 10 or more years, it is for "a reasonable amount of time." But the judge has discretion here, so the duration can vary.
- The income and earning capacity of each spouse. A spouse can't just choose not to work in order to up his/her alimony payment.
- The needs of each spouse as to living expenses, including taking into account the cost of living where the supported spouse will live after the marriage ends.
- The ability of the supporting spouse to pay, which takes into account income, future earning potential, and current assets.
- If it would be too hard for the parent with custody of any children from the marriage to work and take care of the kids. And how much it would cost for child care (daycare or a babysitter.)
- The "marketable skills" of each spouse. And, if the supported spouse lost skills through long disuse because he/she watched the children or attended to other duties, instead of working, during the marriage.
- How much time and money it will take for the supported spouse to get education that will improve his/her marketable skills.
- Whether the supported spouse helped the supporting spouse attain an education or professional license that boosted his/her income.
- The age and health condition of each spouse at the time of divorce.
- What tax impacts spousal support arrangements will have on each spouse.
- Whether or not any domestic violence was perpetrated by the supporting spouse.
- What kinds and value of property and/or debts existed when the marriage ended (at the date of separation, really.)
The general goal of the court is to sustain the standard of living that the supported spouse had during the marriage for long enough after the marriage that he/she can become financially independent again.
About Domestic Violence and Spousal Support
If a spouse whom the court decides should pay spousal support is found to have a history of domestic violence, the judge may increase the amount of spousal support on that basis.
However, if the to-be-supported spouse has a history of domestic violence, that also can be relevant. For example, if he/she was convicted of domestic violence against his/her spouse in the past, it is very possible that no spousal support at all will go to him/her. However, it is possible for an argument to be made that such support should still be given, if the party's lawyer can demonstrate why to the court.
What Happens If My Spouse Fails to Pay?
After a spouse is ordered by the court to pay a certain amount of spousal support per month, that order stands until the court adjusts it. No verbal agreement between the two ex-spouses makes any change to what is legally required.
If your spouse fails to pay, his/her wages may be garnished. And a 10% interest fee per year can be charged to all back-alimony that is due. You can approach the court with a complaint and begin a process to collect the defaulted or delinquent alimony.
If the court finds your spouse was fully able to pay but simply decided not to, he/she can be held in contempt of court and may go to jail if the matter cannot be resolved in any other way.
Also realize that if a supporting spouse is unemployed or under-employed and the court determines he/she is doing this on purpose to avoid paying child support; the court can "impute income" (what he/she would have made) and base child support on that amount.
Finally, the supported spouse also has a duty to report support received on his/her tax returns each year. Plus, he/she has a duty to work and earn income to the best of his/her ability - and if this is not done, the supporting spouse can file a complaint with the court to try to get the alimony amount reduced.
Changing or Ending Spousal Support
In most cases, depending on the nature of the spousal support agreement, a changed situation will create a basis for changing the amount of support due. But this does not happen automatically - one has to go through the process with the court to get the court order changed to reflect the new situation.
If the supported spouse starts earning more money or has increased earning capacity due to educational advancement, OR if the supporting spouse suddenly makes less money or has reduced earning capacity (perhaps, from an accidental injury); then that can be a basis for adjusting the alimony.
But both spouse must be making a "good faith effort" to earn their highest possible wage.
Also realize that spousal support (aside from whatever portion of a pension might be considered marital property) ends once the supporting spouse retires (at age 65 or older). There are exceptions, but normally it will end.
Also, spousal support can end if the supported spouse remarries or is found to be getting support from some other party, perhaps, one with whom he/she is now living.
Forming a Spousal Support Agreement
The court will encourage you and your spouse to create, with the help of your respective attorneys, your own plan for spousal support.
If that plan you two come up with is approved by the court, it will become a court order and legally binding. Otherwise, it would have to be revised - or the court would have to intervene and decide the matter itself without input from either spouse.
At San Diego Divorce Attorney, we can ensure you are fully informed of your rights as to spousal support issues, how the process of paying/receiving it works, and how spousal support amounts and durations are determined.
Both spouses must declare all income, assets, and relevant factors that could affect spousal support (and property division) determination.
An agreement should be reached on amount, duration, and on the manner in which alimony payments are to be made. The payments might be deducted from the supporting spouse's paycheck, automatically withdrawn from his/her bank account, or paid via personal check, for example.
Child support, if any, must be determined first because, in California, spousal support amounts are partially based on how much child support is being received. Thus, it makes sense to work through child support, child custody, and visitation issues at the same time as forming a spousal support agreement.
Also, sometimes alimony is paid in one lump-sum amount in a settlement - and when that kind of "alternative" alimony is paid, you have to consider property division and alimony issues together. But most people opt for the "standard" monthly payment approach to alimony.
We at San Diego Divorce Attorney can help you formulate and write up your spousal support agreement. Both spouses must sign it, and then we can submit it to the court for the judge's approval.
If either party is found to have been forced or pressured into signing the agreement or if only one spouse signs it, the judge will not accept it. (And forging a spouse's signature onto the agreement will not work and will likely be treated severely by the court.)
Why Choose San Diego Divorce Attorney?
San Diego Divorce Attorney has decades of legal experience across a wide range of family law practice areas on its staff, and we have extensive, in-depth knowledge of all of the California laws that affect alimony, divorce, legal separation, child support, and a host of other important issues.
We bring you a level of expertise that most other law firms simply don't possess. But that's not where it ends. We also give each client a degree of personal attention that is rare these days, and we "custom build" each and every case from the ground up (based on our longtime experience) to match the details of our clients' unique situations.
We keep ourselves affordable, and let you know our rates upfront instead of hitting you last-minute with a lot of hidden "surprise" fees.
And we always treat you with respect, courtesy, and professionalism. We have a strong reputation in San Diego and Southern California based on years of dedicated service to clients just like you, and we have an extremely high client satisfaction rate.
We also keep ourselves constantly available to communicate with our clients; and we offer you a free initial legal consultation because we are confident most people who experience our legal services even for a short while over the phone, will choose us to represent them.
Contact Us Today for Assistance
At San Diego Divorce Attorney, we have along track record of successfully securing legally enforceable and equitable spousal support agreements for our clients.
We understand the numerous financial factors that determine alimony amounts and
we can assist you in this very complex part of divorce and/or legal separation cases.
To learn more and for a free consultation on the details of your case, contact us today by calling 858-529-5150.