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How is Alimony Determined in California?

McKean Family Law > Alimony  > How is Alimony Determined in California?

How is Alimony Determined in California?

how is alimony determined in california

Alimony, or more accurately called spousal support in California, is divided into two categories: temporary support and permanent support. A spousal support award is intended to ensure that the lower earning spouse is able to support themselves both during and after the divorce. There are two types of spousal support: “temporary” and “permanent” spousal support.

Both temporary and permanent spousal support awards are decided by a Judge if the spouses cannot agree on how much spousal support should be paid by the supported party contributed. Most counties in California use an alimony calculator to determine temporary alimony, but the Judge has the discretion to modify the amount of support proposed by the calculator based on many factors.

The term “permanent support” is used frequently, but permanent is an inaccurate name. Spousal support is rarely permanent. It is better classified as “post-judgment” spousal support.

To determine how long alimony payments will be made post-judgment, legislation has left it up to a complicated set of factors for the Court to consider. The spousal support payments (aka alimony payments) you could receive or the amount you pay spousal support (aka pay alimony) can change based on where you file, what stage you are in your divorce, and the duration of your marriage, among other factors.

Support Formulas and Calculators May Be Different in Each County

Attorneys and Courts have access to private programs used to calculate child and spousal support. The Department of Child Support Services and some Courts only use the statewide support calculator, which can be found at https://childsupport.ca.gov/guideline-calculator/

These programs all have differences which can cause the calculated amounts to deviate. Typically, the differences in the numbers produced by the calculators’ amount to only a few dollars.

The various formulas used by different counties are where the larger differences in alimony payments are seen.

Each county decides which formula will be used. You can usually find the formula in the Local Court Rules of your particular county. Although the numbers may change slightly based on which alimony calculator is used, a common formula is to take 40% of the high earner’s net monthly income and minus it by 50% of the low earner’s net monthly income. If, for example, your monthly net income is $8,000 and your spouse’s net income is $4,000, the calculation would look like this:

40% of $8,000 = $3,200 (higher earning spouse’s income)

50% of $4,000 = $2,000 (lower earning spouse’s income)

$3,200 – $2,000 = $1,200 (spousal support obligation)

If you are the higher income earner, you would owe spousal support in the amount of $1,200 a month, being the difference between the two figures.

Child support payments are not ignored. If you have dependent children, the calculator will first determine the child support payments. If the paying spouse also has a child support obligation, the alimony calculated will deduct the child support payment from the net income before calculating alimony.

While this is the common formula in determining spousal support, there is nothing binding a Judge to use this determination. A Judge has a significant amount of discretion in ordering spousal support.

Temporary Spousal Support

The Court will normally use a calculation when determining alimony in the early stage of divorce. Support orders made after you have filed a case but before a Judgment is entered are considered temporary spousal support. These kinds of orders are not intended to be long-term spousal support orders.

Sometimes, the supported party contributed, and the spouses can negotiate an order for the supporting party to pay the living expenses of the other spouse, such as rent or mortgage, bills, car payments, etc.

The Court has wide discretion when rendering a temporary spousal support order. Although the Court typically uses a calculation, the law allows the Court to make an order in any amount after consideration of two factors: the supporting spouse’s ability to pay and the supported spouse’s need.

However, if there is a history of domestic violence, the Court will consider the domestic violence perpetrated and may deny alimony payments to an abusive spouse, even during the temporary support period.

Post-Judgment Spousal Support

Post-judgment spousal support (also known as “permanent alimony” or “permanent spousal support”) is normally paid on a long term basis. The spousal support order is made to continue after the divorce is finalized. Sometimes there is an end date provided, and sometimes the order is made for an indefinite amount of time.

The factors considered by a Judge when making a post-judgment spousal support order are listed in California Family Code Statute 4320, which is the controlling statute for long term spousal support orders.

There are many considered factors, but the primary factors used to determine spousal support is income and earning capacity. The Court looks at the present income as well as separate property available to the supported party. They also look at the income and assets of the spouse paying support in determining alimony payments.

The “standard of living during the marriage” is also a big factor in California divorce. The Court looks to the lifestyle that both spouses lived and attempt to keep the parties near that same standard whenever possible.

They also look at the situation when one spouse has a history of domestic violence, including criminal conviction and other documented incidents of domestic violence perpetrated. The Court has a public policy not to order that a victim pay spousal support to the abusive spouse.

In addition to those factors, the Court considers the time away from a career that one party had to attend to for domestic duties. They also consider the situation when a supporting party contributed to the education or job advancement of the supporting party. Some of the many other factors the Court looks to are the duration of the marriage, health, age, specific tax consequences, and many other factors. The Court goes through a detailed review of each family’s situation when making a permanent alimony order.

Short Term Marriage

When it comes to determining the duration of spousal support, the Court has two different categories. The Court will either classify your marriage as being of long term, or of short term. This determination may affect your rights to spousal support! A short term marriage is any marriage that is less than 10 years, determined from the date of marriage to the date that the parties permanently separated.

The duration of marriage plays a significant role in the Court’s determination of what is a reasonable amount of time for a spouse to be supported. Pursuant to California Family Code Statute 4320(I), which states that the Court, when ordering spousal support, will consider:

The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a “reasonable period of time” for purposes of this section generally shall be one-half the length of the marriage.

The goal of spousal support is to assist a person to get to a point where they can support themselves. The Court uses phrases such as “reasonable” to determine how long a supported spouse might need to be supported. While there is no set amount of time the Court must order the supporting party to pay alimony, as a rule of thumb, “reasonable” is about half the length of a marriage. The Court can make orders for a greater or lesser length based on various factors. While the Court holds the power to stop spousal support or even completely terminate the right to spousal support at a point they believe reasonable. Once the right to spousal support is terminated, the Court loses the ability to make new spousal support orders, regardless of your circumstances.

Long Term Marriage

Contrary to a short term marriage, a long term marriage has deemed any marriage that lasts longer than 10 years from the date of marriage to the date of permanent separation. The difference is that the Judge has no statutory guidance dictating what is or isn’t reasonable. The Judge can determine what a reasonable amount of time is. Further, the Court will retain the power to modify spousal support based on a change of circumstances, usually until remarriage or death. This means that if circumstances change after your divorce, you can go back to Court to modify the spousal support orders.

What this normally means is that when short term marriages end, there is an end date for support in their judgment of divorce, usually lasting about half the length of the marriage. In long term marriages, the order has no date that the payments end. That means that unless the supported party remarried or died, the party paying spousal support has to go back to court if they want to stop paying alimony.

There are a sizable number of factors that can affect your right to spousal support or your obligations. To discuss the specifics of your unique situation, it is best to talk with an attorney to better understand your rights.

What if my spouse won’t work?

Spousal support payments are not supposed to last forever, but alimony laws serve an important purpose when a marriage ends.

If the supported party does not work or works below their earning ability, the Court often awards rehabilitative alimony, which allows the non-working spouse to obtain an appropriate education to allow them to secure gainful employment. This helps the lower income spouse become self-supporting and helps both spouses in the long term.

If the spouse who was the breadwinner during the marriage leaves their job or reduces their income after separation, the Court can still order that person to pay alimony based on the supporting party’s earning capacity.

At the Court’s discretion, they can impute income to either spouse based on the education and skills of a party, along with the current job market.

Contact a Family Law Attorney to Discuss Your Spousal Support

Spousal support in California can involve complex and confusing rules. It helps to have the guidance of an experienced family law attorney if you have questions about what your alimony payment may look like.

There are a sizable number of factors that can affect your right to spousal support or your obligations. To discuss the specifics of your unique situation, it is best to talk with an attorney like Mckean Family Law to better understand your rights.

Related: Difference between Alimony and Palimony