Alimony & Spousal Support: Will You Have to Pay or Receive?

What Is Spousal Support or Alimony?

Spousal support, commonly referred to as alimony, is a payment from one spouse to another to help maintain financial stability after separation or divorce. Regardless of gender either one of the spouses can be ordered to pay spousal support to the other. (Husband to wife, wife to husband, etc.) (This article does not cover domestic partner support .)

California recognizes two types of spousal support during a divorce:

• Temporary support – Paid during the divorce process to help the lower-earning spouse maintain themselves. Sometimes referred to as temporary spousal support or short term support.

• Post-judgment (or “ permanent spousal support ”) support – Ordered after the divorce is finalized and meant to assist the supported spouse in becoming self-supporting within a reasonable period of time.

When Is Spousal Support Awarded?

Spousal support is not automatic in California. There must be an open divorce case with the court to allow the court to order spousal support, if you are only separated from your spouse and have not opened a divorce case with the court, the court cannot order them to pay you spousal support. Additionally, the spouse that wants to receive spousal support has to make this request to the court in writing by filing a document called a "Request for Order."

The court will then first determine if ordering spousal support is appropriate based on the facts of the case. Spousal support is more likely to be awarded when there is a significant income disparity between spouses or when one spouse was financially dependent on the other during the marriage or one of them was unemployed for a lot of time during the marriage and was being maintained by the other spouse.

The court considers a range of factors set out in California Family Code § 4320

Key Factors Courts Consider

When deciding if and how much spousal support is appropriate in each case, the judge will take into account;

• Earning capacity of each party – Whether both spouses can maintain a similar lifestyle from when they were married now that they are separated, considering their job skills, education, and current employment.

• The supported party's marketable skills – Whether they need education or training to get a job that can will allow them to support themselves.

• The extent to which one spouse supported the other's education or career. - For example if one spouse paid the other's student loans or supported them in their career in any other way while putting theirs on hold.

• The ability of the paying spouse to afford support. - If the spouse paying support can still pay their essential expenses after paying spousal support.

• The needs of each party – What are each of their essential expenses to maintain a similar lifestyle (also known as standard of living) from when they were married.

• The duration of the marriage. - Was it a long term (more than 10 years) ? or Short term marriage (less than 10 years)? This usually determines for how much time one of them have to pay support to the other.

• The age and health of both parties. - Any physical limitations or age-related realities are taken into account when deciding on spousal support.

  • For Example, does the age of either spouse limit their ability to retrain, re-enter the workforce, or support themselves?

  • Does either spouse suffer from a chronic illness, disability, or medical condition that limits their ability to work?

    • For Example: A 58-year-old homemaker who hasn't worked outside the home in 25 years, is a lot more likely to need and be given long-term spousal support, especially if she has health issues that prevent full-time work, when compared to a 35-year-old healthy spouse with no dependents and a college degree. In the second example their support might be lower or only for a short amount of time (if any).

• Documented history of domestic violence. - There does not necessarily have to be a restraining order or a criminal charge related to the domestic violence.

• The balance of hardships to each party. - how paying or receiving support would affect each spouse, both financially and practically.

• The goal that the supported party shall be self-supporting within a reasonable time – For marriages under 10 years, this is generally presumed to be half the length of the marriage (see below).

  In California, when a judge decides whether one spouse should pay the other spousal support (also called alimony), they look at all of these factors to make a fair decision. The goal is to help the lower-earning spouse become self-supporting within a reasonable time, but in long marriages (over 10 years), support can last much longer. The judge doesn't use a strict formula—they look at the whole situation and try to be fair to both sides.

How Long Does Spousal Support Last?

If the court decides that one spouse should receive support, it also sets the amount of time spousal support must be paid.

Under Family Code § 4320(l) the general rule is:

• For marriages under 10 years (short-term), support typically lasts half the length of the marriage.

• For marriages of 10 years or more (long-term), the court may not set an end date at the time of judgment.

However, this does not mean support will last indefinitely. The goal, according to the law in Family Code § 4320(l), is for the spouse receiving alimony, to eventually become self-supporting within a reasonable period of time. Support can be modified or terminated based on changes in circumstances, such as remarriage, retirement, or significant income changes.

Do I Have to Go to Court?

There are two ways to obtain a Judge's order for spousal support. First by having an agreement with your ex spouse to pay spousal support and second requesting the court to give you a Judge's order for spousal support.

Once you have your open case with the courthouse, both you and your spouse can agree whether support will be paid, how much, and for how long, you can submit your agreement to the court for approval as part of a stipulated Judgment or Order. You may not have to appear in court if you both agree on this.

However, if you both don't agree on this then you will have to submit a request for an order for spousal support, both spouses will have to go to court and the judge will decide. For this second option you will have to go to court.

What If My Ex Refuses to Pay ?

If you have a valid court order for spousal support and your ex refuses to pay, you can enforce the order through wage garnishment. A wage garnishment is when the state collects the spousal support directly from your ex's paycheck before they recieve it. The remaining amount after the support is deducted is paid to them.

Other options are contempt proceedings. California takes spousal support and child support enforcement seriously, and the Department of Child Support Services (DCSS) may even assist in collection in some cases if child support is involved.

Tips from a Family Law Attorney

Whether you're concerned about paying too much or not receiving what you're entitled to, spousal support can dramatically impact your financial future. Courts have a lot of discretion, and each case is deeply fact-specific.

A qualified family law attorney can help you:

• Analyze your eligibility or risk for spousal support payments

• Negotiate fair terms for your separation agreement

• Ensure court orders reflect your reality

• Protect you from unfair financial obligations

Have Questions About Spousal Support? Let's Talk.

If you're going through a divorce or legal separation in California and spousal support is on the table, I invite you to schedule a confidential consultation with a lawyer. Let's discuss your goals, your options, and how we can protect your financial future and how to navigate your dissolution of marriage .