Spousal Support FAQs

Q: What is spousal support? What is alimony?

Spousal support is the term used for payments from one spouse to another after a divorce for the purpose of maintaining the former spouse's standard of living during the marriage.

The term "alimony" means the same thing as "spousal support." Spousal support laws seek to prevent a divorced spouse from suffering a standard of living decrease. Both terms are interchangeable when discussing post-divorce support.

Often times after divorce, one spouse is untrained or has been out of the workforce for such a significant amount of time that it becomes difficult for them to quickly attain a job or professional position that allows them to maintain their expected standard of living.

Spousal support in California is meant to bridge the gap between the time it takes for that spouse to obtain employment or resources that meet their cost of living needs.

Use our California Spousal Support Calculator to verify that you aren't paying too much in support.

Q: Do all divorces or separations involve spousal support?

It is a common misconception that alimony is a required part of a divorce or separation. Only about 10-15% of all divorces or separations include any spousal support as part of the final divorce judgment or decree. You may think most divorces involve spousal support since those divorces that do are typically litigated.

Q: Why should I care about spousal support?

Spousal support is often the largest financial obligation you will incur as part of a divorce. If you are not proactive, spousal support can last decades and cost you hundreds of thousands of dollars. If you end up paying $1,500 per month over a 20 year period, that amounts to $360,000 in spousal support payments. Even reducing that amount by $500 per month saves $120,000 over 20 years.

Q: Doesn't the court just run the ‘Dissomaster' computer program and arrive at a spousal support payment?

While the court may use a computer program or guideline to calculate a temporary spousal support amount before the trial, the court is not allowed to use the Dissomaster in calculating permanent support. In re Marriage of Olson (1993) 14 Cal.App.4th 1, card ß{SpSu 624.02}, a permanent spousal support order based on the Dissomaster was reversed because of the failure to consider all 4320 factors.

Q: My spouse had multiple affairs during our marriage. Will this affect the amount of support?

California is considered a no-fault jurisdiction. Accordingly, the court will not consider your spouse's affair when determining spousal support. However, if your spouse is cohabitating, the court must presume she has a decreased need for spousal support.

Q: Should I avoid going to court because of the high cost involved?

It's always a good idea to try to negotiate an out-of-court settlement to save legal fees, but often there are significant advantages to actually litigating spousal support. In many cases, settling out-of-court yields an indefinite spousal support order, meaning it could go on forever. Also, out-of-court settlements may not always establish an exact dollar amount for the "marital standard of living," making modification or termination of support much harder in the future. Such settlements often don't take into account your spouse's earning capacity as established by the testimony of a licensed vocational counselor, and rarely include a Gavron Warning.

If you look at this issue as a long-term obligation that can span several decades, you may have a significant advantage in litigating alimony to ensure that you have set the case up correctly for eventual termination of spousal support. All too often the paying spouse is in a hurry to get through the divorce process and doesn't consider the long term implications of paying spousal support for 10-20 years or more. Litigation often presents a tremendous advantage in resolving spousal support in your favor.

Q: What is the 10 year rule?

Marriages of 10 years or more are considered marriages of long duration in California. As such the court is not allowed to set a definite termination date for spousal support at the time of the trial. Many people and attorneys misinterpret this rule to mean that California has lifetime spousal support in marriages of long duration. This is not the case, as proven by the citation below:

As recognized by our Supreme Court the public policy of this state has progressed from one which "entitled some women to lifelong alimony as a condition of the marital contract of support to one that entitles either spouse to post-dissolution support for only so long as is necessary to become self-supporting." In re Marriage of Schmir (2005) 134 CA4 432.

While the court cannot terminate spousal support by a certain date, they can set a date for termination unless the supported spouse applies to extend the support on or before that date. In marriages that are just over 10 years, or the spouse has excellent career prospects, this is often a fruitful strategy to pursue. In marriages of less than 10 years, spousal support is presumed to be no longer in duration than half the length of the marriage.

Q: Can I stop paying support when I retire?

Under In re Marriage of Reynolds (1998) 63 Cal.App.4th 1373, you are entitled to retire at age 65 and cannot be required to work to support your spouse beyond that age. Arguably, if you're forced into early retirement, you may be able to convince the court that you should not have to continue paying support.

Q: I'm up for a big raise. Will this affect my payments?

No; under a case called Hoffmeister II, the court cannot consider your increased post-separation earnings as a basis for awarding support beyond that which is justified by the marital standard of living.

Q: My income just went way down. Can I get my payments reduced?

Yes; if you have been involuntarily terminated or had your income reduced, you should be able to receive a temporary abatement of support. In many cases, if you are unable to obtain comparable employment and have to take a pay cut, you may be able to receive a permanent spousal support reduction or termination.

Q: I'm self-employed. If I earn less, can I reduce my support?

Yes; if your business has been affected by the recession and you are earning less, you should be able to lower your spousal support obligations.

Q: I'm self-employed. If I work less can I pay less?

Possibly; under California law, you can only be required to work a "reasonable work regimen." This could apply if you are working well about a "typical" day in your work field.

Q: I was ordered to pay my former spouse a percentage of my bonus or overtime income on a monthly basis. Is this legal?

Know as "Smith-Ostler" orders, they can be very problematic in the area of spousal support. Unless there is an annual cap, these orders may end up providing your former spouse with more support than is consistent with the marital standard of living. These orders are also difficult to enforce and calculate. While there are some circumstances where these orders are necessary, they aren't beneficial to the spouse paying the support.

Q: My ex-spouse is up for a big raise. Can I pay less after that?

Yes; if the supported spouse earns more, it's usually a good reason to go to court and have their support reduced or terminated.

Q: My spouse doesn't work and doesn't want to. Can I force him or her to become self-supporting?

You can't force them to get a job, but you can obtain a vocational assessment and have to court consider lowering or terminating support if they have not sought out employment. The court can also assign them a fictional income if you can prove they are purposefully avoiding employment despite the availability of positions consistent with their skills.

Q: My spouse claims to be disabled. Is there anything I can do about this?

Yes; oftentimes non-specific disability claims for "stress" or "depression" are a central reason the ex-spouse says they can't return to work. There may be a valid disability, but it may only impact certain job fields, leaving open the possibility of employment in another industry. For instance, someone with a back injury may not be able to work in construction or in a warehouse, but can do so at a computer terminal or desk.

In many cases an Independent Medical Evaluation is recommended. Once the IME is completed, a licensed vocational counselor makes suggestions as to what type of employment is available, with respect to the person's limitations.

Q: Will the division of assets have an effect on support?

Yes; if your spouse is awarded significant assets, or if you make significant equalization payments over time, this should be considered as a mitigating factor against spousal support.

Q: Can I avoid paying support by declaring bankruptcy?

Spousal support obligations are generally non-dischargeable in bankruptcy. Filing for bankruptcy doesn't help you avoid paying support.

Q: Will I get any relief from support through taxes?

Spousal support payments are generally tax deductible to the payor and taxable to the recipient.

Q: My ex-spouse has started living with her new lover. Can I use this to reduce or end support?

Yes; this situation is known as cohabitation and is generally a good reason to significantly lower or eliminate spousal support responsibilities.

Q: My ex-spouse is getting married again. Does this mean I can finally stop paying support?

Yes; your obligation to pay spousal support ends upon his or her remarriage. You may need to obtain an order terminating a wage assignment if there's one in place.

 

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