Alimony in California is called "spousal support." When a married couple divorces after building a lifestyle together, a court may require the higher earner—whether the husband or the wife— to assist the lower earner in maintaining that lifestyle for at least some period of time. A judge in California may award temporary—or "pendente lite"—support during divorce proceedings, as well as support after a divorce is final. Spousal support orders generally direct one spouse to pay the other a specified amount periodically for a predetermined period of time. Support can also consist of a single lump-sum payment. Sometimes spouses can agree between themselves on the terms and conditions of support payments. A court will uphold an agreement as long as it meets legal requirements, even if the agreement provides for a complete waiver of support to a lower-earning spouse.
Duration of California Spousal Support
The duration of spousal support in California is often tied to the length of the marriage. After a marriage of less than 10 years, a court will not usually order support for longer than half the length of the marriage. If a marriage has lasted 10 years or longer, the court generally won’t set a definite termination date for support at the time of the divorce; both spouses retain the right to request modification indefinitely, unless they specifically agree to a termination date, or the court expressly terminates support at a later hearing.
While courts and attorneys often refer to post-divorce spousal support as "permanent," it is increasingly rare for a judge to order true permanent support, even after marriages of well over 10 years. California courts require a spouse seeking support to make efforts to become self-supporting, regardless of the length of a marriage. A spouse who claims an inability to work, or an inability to become fully employed, will have to support this claim with evidence, sometimes including a vocational evaluation. Long term support orders may reduce support gradually over time down to a nominal amount—such as $1.00 per year. True permanent spousal support is generally reserved for spouses who lack the ability to become self-supporting due to age or disability.
Calculation of Spousal Support
Under California law the purpose of temporary spousal support is to preserve the financial status quo to the greatest extent possible. A court may order temporary spousal support in any amount after considering the needs of the spouse requesting it and the other spouse’s ability to pay. In practice, however, courts commonly use formulas for calculating temporary support, such as the Santa Clara County formula, which arrives at a figure by subtracting 50% of the lower-earner’s net income from 40% of the higher earner’s, with adjustments for tax consequences and child support payments. Parents of dependent children can obtain a rough estimate of what temporary spousal support payments might look like along with child support payments—which follow very strict guidelines—by accessing the support calculator at the California Department of Child Support.
The purpose of support after a final divorce is to assist a supported spouse in maintaining a standard of living close to the marital standard; however the goal is for the spouse to become self-supporting to the greatest extent possible. Before ordering this kind of support, a court will consider the extent to which each spouse’s earning capacity is sufficient to maintain the marital standard of living, taking into account:
- the marketable skills of the supported spouse,
- the job market for those skills,
- any time or expense the supported spouse requires to acquire education or training for employment or enhanced employability, and
- the extent to which periods of unemployment due to domestic duties during the marriage have impaired the supported spouse's present or future earning capacity.
The court will also consider any other factors that may be relevant to the fairness of an award, including:
- the extent to which the supported spouse contributed to the other spouse’s attainment of education, training, professional licensing or career advancement,
- the ability of the supporting spouse to pay support, taking into account earning capacity, earned and unearned income, assets, and standard of living,
- the needs of each party based on the marital standard of living,
- each spouse’s obligations and assets, including separate property,
- the duration of the marriage,
- the ability of a spouse who is also a custodial parent to engage in gainful employment without unduly interfering with the interests of dependent children,
- each spouse’s age and health,
- any documented history of domestic violence by either spouse,
- the immediate and specific tax consequences to each spouse,
- the balance of the hardships to each spouse, and
- the goal that the supported spouse will be self-supporting within a reasonable period of time—presumed to be one-half the length of a marriage unless the marriage was longer than 10 years.
California courts don’t ordinarily consider conduct in determining support, but a court won’t usually award support to a spouse who has acted extremely violently toward the other spouse.
Modification or Termination
Unless the couple has a written agreement not to seek changes in spousal support in court, either spouse can request modification or termination of periodic payments due to a material change in circumstances. Absent a written agreement stating otherwise, spousal support terminates on the death of either spouse, or on the remarriage of the recipient. There is a rebuttable presumption that a party who is cohabiting with a new partner has a reduced need for support.
Periodic spousal support payments are usually taxable to the recipient and tax-deductible by the payer. Couples who are able to craft their own settlement agreements can sometimes take advantage of this situation by structuring payments to create the best possible tax scenario for both spouses. There will generally be no tax consequences of a single lump-sum support payment.
California Family Code Sections 4320-4339