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Alimony - The Basics (In California)

HandelontheLaw.com Staff Writer

Wednesday, May 12, 2004



Alimony - The Basics (In California)

Everybody knows that you didn't marry the 65-year-old oil baron for his money. You married him because it was true love. The only problem was that when you finally turned 30, he decided to dump you in favor of some 21-year-old bimbette whom he now takes to all of his public functions.

Don't fret. You can have the last laugh when the divorce papers go through. You can collect alimony!

Alimony refers to payment made to a divorced or separated spouse. Alimony should not be confused with "child support" which are separate payments made to support a child's welfare after a divorce. Although some mistakenly use the terms interchangeably, "Alimony" and "Child Support" are two separate concepts.

Alimony can be avoided if a valid pre-marital or "pre-nuptial" agreement exists between the couple that specifies what payment (if any) a person is entitled to in the event of a divorce.

If no such agreement if found or upheld by the courts however, then alimony payment may be ordered if requested by one of the spouses seeking divorce.

And good news men! In 1979, the U.S. Supreme Court struck down a law in Alabama that said only husbands may be required to pay alimony - not wives. Such laws violate the Equal Protection Clause of the U.S. Constitution.

Alimony is determined by an individual's need - not gender.

When a court issues an order for alimony payments, it may tell the recipient of the payments that he or she should make reasonable efforts to assist in providing for his or her support needs, taking into account their own particular circumstances and the overall length of the marriage.

Upon a motion to the court by one of the spouses when a request for alimony is involved, a court may order one of the spouses to submit to an examination by a vocational training counselor. The examination would include an assessment of the spouse's ability to obtain
employment based upon his or her age, health, education, marketable skills, employment history, and the current availability of employment opportunities in order to assess the ability to obtain employment that would allow a sustaining of the same standard of living obtained during the marriage.

How much alimony will I owe (or receive)?

There is no fixed rule or formula for just how much alimony should be paid or who should pay it. In determining what extent (if any) alimony payments should be made, California courts consider all of the following circumstances:

(1) The extent to which the earning capacity of each spouse is sufficient to maintain the standard of living established during the marriage, taking into account a number of factors including one's marketable skills and current job market for such skills, etc.)

(2) The extent to which the supported spouse contributed to the attainment of an education, training, a career position, or a license by the supporting spouse.

(3) The ability of the supporting spouse to pay spousal support, taking into account his or her earning capacity, earned and unearned income, assets, and standard of living.

(4) The needs of each spouse based on the standard of living established during the marriage.

(5) The obligations and assets, including the separate property, of each spouse.

(6) The duration of the marriage.

(7) The ability of the supported spouse to engage in gainful employment without unduly interfering with the interests of dependent children in his or her custody.

(8) The age and health of each spouse.

(9) Any documented evidence or history of domestic violence between the spouses.

(10) The immediate and specific tax consequences to each spouse.

(11) The balance of the hardships to each spouse.

(12) Any other factors the court determines are "just and equitable".
A court can also deny alimony payments if the spouse asking for it has enough separate earnings or property to support themselves with or if the other spouse has custody of children from the marriage and already has the burden of supporting them financially.

"What if I managed to win the lottery right after my marriage ended? Does this mean that I will have to pay more alimony than before?"

Nope. The standard for alimony payments is the needs of the spouse based on the standard of living established during the marriage. Any substantial increases in income which happen after the marriage are not considered in determining the amount of alimony payments.
A few other factors to consider is that California courts have held that a spouse paying alimony still has the right to retire starting at age 65 and that a working spouse cannot be forced to work "continuous, substantial overtime" in order to make alimony payments.


How long do alimony payments last?

Again, there are no concrete rules in regards to this question. But there are some general guidelines. The standard goal is that the spouse receiving alimony support should be self-supporting within a length of time equal to one-half the length of the marriage, at which point alimony would end. However, a court can either extend or shorten the length of alimony payments if special circumstances warrant it.

So usually, if the court finds alimony is warranted in a particular divorce case, it will order payments made for a specific fixed period of time (usually as monthly payments - keeping the standard goal in mind) as part of the divorce or separation decree. Once the fixed period ends, then that usually also ends the court's interest and jurisdiction in enforcing any further payments of spousal support.

However, the law requires that California courts specifically reserve the right to consider the possibly of sustaining alimony indefinitely for marriages of "long duration". A "long duration" in this instance means 10 years or longer, though courts can look at evidence of separations during the marriage to disprove this presumption.

(Perhaps you've heard the story about how Tom Cruise divorced his wife Nicole Kidman just shy of their 10-year anniversary? This could very well have been a reason why.)

Even in "long duration" marriages though, courts will still expect spouses receiving alimony to make reasonable efforts towards self-sufficiency. There is no ironclad law requiring lifetime alimony after "long duration" marriages end, and you may find that some courts will frown upon such notions.


What factors could decrease or end the need for alimony payments?
(1) If the spouse receiving alimony payments starts living together with a person of the opposite sex, there is a rebuttable presumption of a decreased need for alimony during this time, regardless of the income of this new "roommate".

"So if my wife leaves me specifically to move in with her new lesbian lover, does this mean that I am still potentially stuck with full alimony payments?"

According to the letter of the law – yes. The law states that a spouse must move in with someone of the opposite sex. It might not be fair (there is even an argument that it might not be Constitutional by current interpretive standards), but that is the law as it currently stands.
(2) If you are ever convicted of attempting to murder your spouse, you will not be entitled to any alimony payments or insurance benefits from him or her. Again, it might not be fair (especially since we all know that you have your reasons), but it's the law.

(3) Any conviction for domestic violence either five years before the divorce, or anytime afterwards, will cause a rebuttable presumption by the courts that the convicted spouse should not receive any alimony payments from the one whom the violence was perpetrated on.

(4) Unless otherwise agreed to by the spouses in writing, the death either spouse or the remarriage of the spouse receiving support ends the obligation for alimony payments.

What are the tax consequences of alimony payments?

For federal income tax calculations, alimony paid under an enforceable written agreement or court order is deductible by the person paying it and is taxable income to the person receiving it. (This differs from "child support", which is not deductible by the payer but is still tax-free for the recipient.)

A mere oral agreement for alimony payments between the parties without a legal decree will not cause it to be deductible for the person paying, nor taxable for the person receiving it. (So be sure to get a written order or agreement if you are the one paying!)

For California state income tax calculations, it works the same way if you are a full-time California resident. Alimony paid under an enforceable written agreement or court order is deductible by the person paying it and is taxable income to the person receiving it.

However, if you are not a California resident or are only a part-time resident but have still earned income in California, things get a bit more complicated. California is one of only a handful of states that limit alimony deductions to residents of the state. If you are not a full-time California resident in this instance, but you have earned income in California and need to make alimony payments, you may wish to consult a tax attorney or specialist.


[Note: This article is to be used as an educational guide only and should not be interpreted as a legal consultation. Readers of this article are advised to seek an attorney if a legal consultation is needed. Laws may vary by state and are subject to change, thus the accuracy of this information can not be guaranteed. Readers act on this information solely at their own risk. Neither the author, handelonthelaw.com, or any of its affiliates shall have any liability stemming from this article.]


Source: Handelonthelaw.com Staff Writer

Note from HandelontheLaw.com: This article is to be used as an educational guide only and should not be interpreted as a legal consultation. Readers of this article are advised to seek an attorney if a legal consultation is needed. Laws may vary by state and are subject to change, thus the accuracy of this information can not be guaranteed. Readers act on this information solely at their own risk. Neither the author, handelonthelaw.com, or any of its affiliates shall have any liability stemming from this article.





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