Spousal Support
Alimony and Spousal Support
When a couple legally separates or divorces, the court may order 1 spouse or domestic partner to pay the other a certain amount of support money each month.
This is called “spousal support” for married couples and “partner support” in domestic partnerships. It is sometimes also called “alimony.”
How Spousal Support Is Legally Established
In order for spousal or partner support to be legally established and officially start, there must be a court case.
A spouse or domestic partner can ask the judge to make a spousal or partner support order as part of one of the following cases, divorce, legal separation, or annulment; or when pursuing a domestic violence restraining order.
You can ask for spousal or partner support to be paid while your case is going on. This is called a “temporary spousal support order” or a “temporary partner support order.” Support can also be ordered once the divorce or legal separation becomes final, as part of the final divorce or separation judgment. When it is ordered once the case becomes final, it is called “permanent (or long-term) spousal or partner support.”
Calculating Spousal or Partner Support
For temporary spousal or partner support, judges in many local courts generally use a formula to calculate the amount. Courts in different counties may use slightly different factors in calculating temporary support.
The judge will not use a formula to figure out how much spousal or partner support to order at the end of your case. When the judge makes his or her final spousal or partner support order, the judge must consider the factors in California Family Code section 4320.
These factors include:
- The length of the marriage or domestic partnership;
- What each person needs based on the standard of living they had during the marriage or domestic partnership;
- What each person pays or can pay (including earnings and earning capacity) to keep the standard of living they had during the marriage or domestic partnership;
- Whether having a job would make it too hard to take care of the children;
- The age and health of both people;
- Debts and property;
- Whether 1 spouse or domestic partner helped the other get an education, training, career, or professional license;
- Whether there was domestic violence in the marriage or domestic partnership;
- Whether 1 spouse’s, or domestic partner’s, career was affected by unemployment or by taking care of the children or home; and
- The tax impact of spousal support (note: federal and state tax laws have not been changed to recognize domestic partnerships).
The spousal or partner support order then becomes part of your final divorce or legal separation judgment.
Factors the Judge Must Consider
Earning capacity And the standard of living
A judge must consider what each spouse or partner can earn to keep a standard of living close to what they each had during the marriage or partnership.
To do this, the judge looks at the:
Marketable skills of the spouse or partner getting support;- Job market for those skills;
- Time and expense the spouse or partner who gets support will need to get the education or training to develop more marketable skills or to get a job;
- Extent that the earning capacity (the ability to earn income) of the spouse or partner who gets support was impaired by periods of unemployment during the marriage/partnership when he or she was devoted to domestic duties.
Length of the marriage or domestic partnership
The duration of a permanent or long-term spousal or partner support order is closely related to the length of the marriage or domestic partnership. The goal of spousal or partner support is that the spouse or partner getting support will be able to support himself or herself within a reasonable period of time.
The law says that, in general, a “reasonable period of time” may be one-half the length of the marriage/partnership. BUT the law also says that the judge has discretion (power) to make a different decision given the specific circumstances of the case.
There is an important exception. When a marriage or partnership is considered a “long-term” marriage or partnership (usually 10 years or more), the judge may not set an end date to the spousal or partner support.
The length of the marriage or domestic partnership is generally from the date of the marriage to the date of the separation. Because the date of separation can have very important consequences when it comes to deciding spousal or partner support, the parties in a divorce or separation case may not be able to agree on a date of separation, and the judge may have to decide what that date will be. Also, the judge can take into account the periods of separation during the marriage/partnership in deciding if the marriage/partnership is of long duration.
Domestic violence
When deciding spousal or partner support, the judge must take into account documented evidence of any history of domestic violence between the parties.
When the spouse or partner that would pay the support is the abusive person, the judge will consider any emotional distress resulting from the violence suffered by the spouse or partner to be supported.
The judge will also consider any history of violence at the hands of the spouse or partner to be supported against the person that would pay the support. And there is a rebuttable presumption against giving spousal or partner support to an abusive spouse or partner who has a criminal conviction for domestic violence against the other spouse or partner.
Falling Behind in Payments
Once a court orders 1 spouse or partner to pay support to the other, it becomes a court order that must be followed until the court changes or ends it, or, if the support order has an end date, until then.
If you have to pay spousal or partner support and fall behind in your payments, you must pay 10% interest per year on the balance due. Interest charges are added by law, and the judge cannot stop them.
If Your Wages Are Garnished
If you owe arrears (past-due spousal or partner support), it is possible that your court order, or wage assignment (garnishment) if there is one, will include an amount over the monthly spousal or partner support. This amount goes toward paying off your arrears, and it is often called a “liquidation amount.” But even if you are paying off your arrears in installments, interest continues to be added to your balance.
If You Are Found In Contempt Of Court
Not paying the spousal or partner support the court ordered you to pay can have very serious consequences. If the court finds that you have the ability to pay support but are willfully not paying it, the court can decide that you are “in contempt of court.” Being in contempt of court can be very serious because you can be sent to jail. This enforcement tool is generally used only when all others have failed.
If you are the spouse or partner getting support, you may be able to get help collecting on your support order. If the local child support agency (LCSA) is currently helping you collect (enforce) a child support order for a child you have with your spouse or domestic partner, the LCSA can help you collect (enforce) the spousal/partner support order along with the child support order. If the LCSA has not helped you yet but you do have a child support order as well as a spousal/partner support order, you can ask them to open an enforcement case on your behalf and help you collect both types of support.
Changing Spousal or Partner Support
Depending on the situation, either spouse or domestic partner might need to change the amount of spousal or partner support that is paid. To ask for a change in the support amount, there needs to be a “change in circumstances.” This means something significant has changed since the spousal or partner support order was made.
Maybe the spouse or partner that was getting support no longer needs it; or the person paying support has had a significant drop in income and can no longer afford the amount of support. Sometimes, the spouse/partner getting support is not making a good faith effort to become self-supporting, so the paying spouse/partner can ask the court to end or change the support order based on this.
Get more information and step-by-step instructions on changing a spousal or partner support order. And take a look at Spousal or Partner Support Declaration Attachment (Form FL-157). This form can be used to ask the court for spousal or partner support, or to ask for a change in the order, and it can help you see what factors the judge will consider when deciding whether to change the amount of support.
Ending Spousal or Partner Support
Spousal and domestic partner support usually ends when:
- A court order or judgment says it ends;
- One of the spouses or domestic partners dies; or
- The person getting the support remarries or registers a new domestic partnership.
Spousal/Partner Support and Taxes
Usually, spousal support is tax deductible for the paying spouse and taxable income for the supported spouse.
If you have a valid same-sex marriage, talk to a lawyer for advice. Same-sex marriages, even if legal in some states, are not recognized by federal law, so spousal support from a divorce of a same-sex marriage may be treated differently for tax purposes.
The law is more complicated when it comes to partner support. Federal and state tax laws were not changed to recognize domestic partners. These laws can be very complicated, and it is important to talk with a lawyer or accountant who is knowledgeable in this area and about income, property, and other taxes.
CONTACT US
Contact the San Diego-based Family Attorneys at The Zarin Law Firm by calling (619) 800-4189 or emailing us at office@zarinlaw.com for help with your Spousal Support matter.
Relevant links:
SHOULD I ASK FOR DIVORCE? THE HOMEMAKER’S DILEMMA