If you’re going through a divorce, you probably have a few questions regarding alimony, including how it’s calculated and how long it will last. This article provides answers to several frequently asked questions about alimony in California.
What is Alimony?
Alimony, which is also referred to as “spousal support” in California, is payment from one spouse (“payor spouse”) to another (“supported spouse” or “payee spouse”) after they separate with plans to divorce. A written agreement or order that requires the payor spouse to make payments to support the other spouse should be filed with the court before any payments are made, so there can be no dispute that the money changing hands is alimony.
In California, spouses can request temporary alimony, permanent alimony, or both.
What is “Temporary Alimony?”
Temporary alimony is a regular payment made from the spouse who earns more money to the one who earns less. It’s referred to as “temporary” because it’s meant to provide some financial support to the lower-earning spouse during the divorce proceeding, and it ends once a permanent alimony award is in place.
You can calculate temporary alimony using a specialized family law software program that automatically generates a support figure based on specific factors, such as the spouses’ incomes, health insurance deductions, and other earnings-related considerations. Though there are a few different software programs out there, they arrive at roughly the same support figure. Family law attorneys and judges across the state use this type of software to calculate temporary support.
What is “Permanent Alimony?”
Permanent alimony, sometimes referred to as “long-term support,” is a regular support payment from the payor spouse to the supported spouse. Unlike temporary alimony, which is paid to help the supported spouse meet expenses during the divorce, permanent alimony is granted in order to place the supported spouse at or near the “marital standard of living” (the financial standard of living established during the marriage) after the divorce.
What factors do courts consider when determining permanent alimony?
If you and your spouse can’t agree on permanent alimony as part of your divorce negotiations, you’ll probably end up in court, where a judge will decide both the amount and duration of long-term support.
When looking at who should pay alimony, and in what amount, courts consider the extent to which each spouse’s earning capacity (potential to earn income) is sufficient to maintain the marital standard of living, taking into account a long list of factors including:
- the marketable skills of the supported spouse; the job market for those skills; the time and expense required for the supported spouse to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire more marketable skills or employment
- the extent to which the supported spouse’s earning capacity is impaired by periods of unemployment incurred during the marriage to permit the supported spouse to devote time to domestic duties
- the extent to which the supported spouse contributed to the paying spouse’s attainment of an education, training, career, or license
- the paying spouse’s ability to pay alimony (taking into account the paying spouse’s earning capacity, earned and unearned income, assets, and standard of living)
- both spouses’ financial needs based on the marital standard of living
- both spouses’ obligations (debts) and assets, including separate property
- the length of the marriage
- the supported spouse’s ability to work outside the home without excessively interfering with the interests of any dependent children in his or her custody, and
- the age and health of the spouses.
How long does permanent alimony last?
The term “permanent” alimony is somewhat of a misnomer. Very few, if any, support awards will continue permanently.
Generally, for short-term marriages (under ten years), permanent alimony lasts no longer than half the length of the marriage, with “marriage” defined as the time between the date of marriage and the date of separation. So, if your marriage lasted eight years, you may expect to pay or receive alimony for four years.
If your marriage was very short, permanent support may never become necessary. For example, if your marriage lasted only one year, you can expect to pay or receive alimony for six months; but this obligation may be met through temporary support payments.
For marriages over ten years, there’s no hard-and-fast rule for figuring out how long alimony should last. Judges will consider various factors in order to place the supported spouse in a position as close as possible to the marital standard of living, until that spouse can reasonably become self-supporting.
After the divorce is final, alimony will continue as stated in your “marital settlement agreement” (a written agreement between spouses that resolves divorce issues) and/or court order awarding alimony, unless one spouse requests a modification or termination of support.
Can I Modify or Terminate Alimony?
Yes. Either spouse may request that the duration and/or amount of alimony be modified (changed), as long as the original order (or marital settlement agreement) awarding alimony doesn’t contain any language that makes alimony “non-modifiable.”
There are two ways to modify alimony. First, you and your spouse can agree to change the amount and/or duration of alimony. If this happens, you should enter into a written contract that spells out the new agreement, and ask the judge to turn the agreement into an official court order.
If you can’t agree, you’ll have to head to court. The person who wants to modify alimony must file a motion with the court and show a “material change of circumstances” from the time the original support order was made. The involuntary loss of a job, for example, may constitute a material change of circumstances. If the payor spouse’s income has decreased through no fault of his or her own, a judge may find that it’s appropriate to reduce support.
Similarly, you may be able to completely terminate your obligation to make alimony payments, as long as you can show a change of circumstances that warrants termination. However, if your order – whether imposed by the court or arrived at by agreement between you and your spouse – was made “non-terminable,” then you won’t be able to terminate it prior to the date it’s set to end.
Finally, a support obligation will automatically terminate upon the death of the supported spouse. If the supported spouse dies before the alimony obligation ends, the payor spouse no longer has to pay, and the supported spouse’s estate can’t enforce the alimony order to its own benefit.
Is Alimony Tax Deductible in California?
Yes, as long as you and your spouse file separate tax returns. The paying spouse can deduct the full amount of alimony payments made during the tax year for which he or she is filing. If you file jointly, alimony isn’t deductible.