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What is Alimony and How Do Courts Determine How Much I Will Get?

    

Throughout the process of your online divorce, one of the main issues you and your separating spouse will need to address is alimony, or permanent spousal support. Even with the best intentions, the idea of spousal support can be tricky. The supporting spouse does not want to feel taken advantage of, and the supported spouse wants to make sure they will have the means to survive. In this post, we will examine   permanent spousal support, and identify the different factors that California Courts look at to determine alimony payments. With this information, as well as the other tools and resources at it’s over easy, you and your separating spouse will be able to come to agreement that works for everyone.

Why is Alimony Awarded?

The main reason why courts award spousal support is to limit any unfair economic effects of a divorce. One justification for alimony  is that oftentimes one spouse has sacrificed their career to support the family, and that spouse will need time to acquire or redevelop the job skills they need to support themselves. Another justification is that each spouse has grown accustomed to a certain standard of living, and alimony support will reduce the drastic change to their lifestyle.

In this video, Ms. Poller of Pryor Cashman, LLP in New York City defines and explains what Equitable Distribution means in the state of New York

 

Permanent Support vs Temporary Support

The term “permanent support” is somewhat of an oxymoron. The reason why is because permanent support may not be so “permanent” as one would think. The courts may award support for a few years, or may not award any support at all.  It’s important to realize that temporary support and permanent support are two different things and the courts approach them differently:

  • Temporary support is awarded during a divorce proceeding;
  • Permanent support is awarded after the divorce has been finalized.

Another key difference is that the courts do not use the computer formulated guideline amount to determine Permanent Support like they do with Temporary Spousal Support. Instead, the courts must consider these 14 factors listed in Family Code 4320

Here are the 14 factors that California courts use to determine alimony payments:

Factor 1: The extent to which each party’s earning capacity will maintain the standard of living that was established during the marriage.

This factor takes into account the supported spouse’s marketability in the current job force and the time and resources needed to make themselves marketable for potential future employment. The courts understand that the longer a spouse spends devoted to the family (such as being a stay-at-home parent), the more difficult it will be for that spouse to re-enter the workforce.Typically, the longer the marriage and the longer that a spouse has been out of the workforce, the more consideration the court will give regarding their ability to get back into the workforce.

Factor 2: The extent to which the supported party contributed to the supporting party’s attainment of an education training, a career position or a license.

An example of this would be if one spouse went to law school and obtained their law degree during their marriage. The courts recognize that the other spouse may have made sacrifices in order for that spouse to go to law school.  It would be unfair not to give back to the spouse for the sacrifices that were made while the other spouse was advancing their career.

Factor 3: The supporting spouse’s ability to pay, taking into account his or her earning capacity, earned and unearned income, assets and standard of living.

For W-2 employees, looking at spouse’s tax returns and income will probably be a strong indicator of a supporting spouse’s ability to pay. However, things get complicated with self-employed spouses where actual income and expenses are not as obvious. The finance professionals at It’s Over Easy can help you navigate this tricky area.  

Factor 4: Each spouse’s needs, based on the standard living established during the marriage.

The courts will often look at the spouses’ expenses during their marriage to determine the spouses’ needs. Keep in mind though, many of these expenses were shared between the spouses (such as groceries). Given that there will now be two different households to support, the spouses should not expect to have the exact same lifestyle post marriage as their married lifestyle.

Factor 5: Each spouse’s assets and obligations.

In California, this factor considers both separate and community property assets and debts. The courts use this factor because it gives the court a sense of each spouse’s net worth. To illustrate this, consider spouses that have no separate property and all of their assets are community property. In this case, the spouses probably have relatively similar net worth. The court will thus be less likely to award a greater support amount to either spouse. On the other hand, if one spouse has an inheritance (such as real estate or other high worth assets) that are their separate property, the court may find that spouse has a higher net worth and award a more significant support to the other spouse. For more information, see our post on community property.  

Factor 6: The duration of the marriage.

As a general rule, the longer the duration of the marriage, the longer the support payments will be ordered. In the past, the courts have generally awarded alimony t for half the duration of the marriage, and marriages longer than 10 years result in lifelong spousal support (unless the supported spouse remarries). For example, if a marriage lasted six years, support would be ordered for 3 years. Please keep in mind that this is NOT an absolute rule. The court will examine the other factors and it is ultimately up to the court’s discretion.   

Factor 7: The supported spouse’s ability to engage in gainful employment without interfering with the interests of dependent children in his or her custody

The courts ultimately want each spouse to become self-supporting. However, they understand that children often limit a parent’s ability to work. For example, consider a spouse that has been awarded custody of their three young children. That spouse will probably have a harder time achieving the same professional success as a spouse that doesn’t have any children to care for. A court will then likely provide more alimony  to the parent of the young children than a spouse without any children (Note this is separate from child support).

Factor 8: Each spouse’s age and health.

As a general rule, the older and less healthy a supported spouse is, the larger the spousal support will be. The reason for this is because the courts understand that many companies might prefer to hire younger and cheaper employees, and it may be harder for older individuals to find gainful employment.

Factor 9: Documented evidence of any history of domestic violence between the spouses or perpetrated by either spouse against either spouse’s child, including emotional distress that has resulted from the domestic violence. 

The courts have the discretion to increase spousal support for the victim-spouse of domestic violence. Similarly, the courts may reduce spousal support to a spouse if the victim-spouse is the higher-earner. The court does not need a conviction or restraining order to find domestic violence occurred during the marriage.  

Factor 10: The immediate and specific tax consequences to each spouse. 

The courts may consider the tax impact of the spousal support order.

Factor 11: The balance of hardships to each party. 

This factor can be considered a “catch-all” consideration for the courts to use if particular hardships are not addressed in the first 10 factors.

Factor 12: The goal that the supported party be self-supporting within a reasonable time. 

As previously mentioned, the courts will generally consider half the length of the marriage as a reasonable period of time for a supported spouse to become self-supporting. The courts also have the discretion to issue a Gavron Warning, which requires the supported spouse to attempt to become self-supporting (such as obtaining a job) or else they risk having their spousal support being reduced or revoked. For a more detailed explanation on Gavron Warnings, see the statue here.  

Factor 13: The criminal conviction of an abusive spouse when the court is reducing or eliminating an alimony award under California Code, Family Code – FAM § 4325 

Similar to Factor 9, Family Code 4325 provides that if there has been a criminal conviction of domestic violence by one spouse against the other spouse within five years of filing for divorce, the court shall not award spousal support to the abusing spouse. However, the offending spouse may rebut this in certain ways such as showing he or she was also a victim of domestic violence from their spouse.

Factor 14: Any other factors that the family court deems to be just and equitable. 

This is a “catch-all” factor that gives the courts broad discretion in their spousal support award.

As you can see, there are many complex and confusing aspects to alimony payments . This can often be the most stressful part for divorcing spouses, worrying about how they can make support payment or how they will be able to become self-supporting again. The finance and legal professionals at It’s Over Easy are here to help you navigate this difficult issue and come up with your own spousal support agreement that will work for the both of you. To learn more or to start your online divorce for free, click here to visit our homepage.

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