In most divorces, couples can work through tough issues, like child custody, property division, and child support without heading to court. However, many couples require judicial intervention when discussing alimony.
Spousal support, or alimony, is a series of payments made from a higher-earning spouse to the other during the divorce process and often, after the court finalizes the divorce.
The purpose of spousal support is to make the transition from a two-income household to one-income less catastrophic for a lower-earning spouse. Although it may seem unfair that you must support your ex-spouse, the goal is to ensure that both spouses walk away from the marriage on balanced financial footing, and sometimes that can’t happen without additional support.
A supported spouse may request temporary spousal support. If a judge awards temporary support, it will typically be granted from the date it's requested until the time the judge finalizes the divorce.
The purpose of temporary support is to allow a lower-earning spouse to cover living expenses during the divorce process. This type of support is unique in that the courts usually calculate the amount of support by using the California child support guidelines instead of the spousal support factors listed below.
Rehabilitative support is the most common type of spousal support and is common in cases where one spouse earns more than the other or was the primary earner in the family while the other cared for the parties’ children and home during the marriage. The goal of rehabilitative support is to give the lower-earning spouse enough support to allow time to gain valuable job skills or education to enter the workforce and become self-supporting.
Permanent spousal support is rare, and the court typically reserves it for spouses ending a long-term marriage (meaning ten or more years) where one spouse can’t enter the workforce due to advanced age or illness. (CA FAM §4336.)
California is unique in that, if one spouse helped finance the other’s education or career advancement training during the marriage, that spouse could request reimbursement support to recoup the funds used during the marriage. The idea behind reimbursement support is that when spouses work together to allow one to get an advanced degree, both will benefit from the advancements during the marriage. When couples divorce, only the spouse with the degree will benefit, and the court understands that may not be fair to the other.
Spousal support is gender-neutral, meaning either spouse can request it from the other. However, the hallmark rule in any spousal support case is that the requesting spouse needs the support, and the other can provide it. If you can’t pass this basic test, the court won’t award any support.
For temporary support requests, the court will gather financial information from each spouse, including information about income, expenses, assets, and debts and then determine an amount using a temporary support calculator.
For the other types of spousal support offered in California (rehabilitative and permanent), the court will determine each spouse’s income and evaluate the following factors to determine a final amount for spousal support:
To determine the amount of reimbursement support, the court will consider the amount of money spent on the spouse’s career or education.
A requesting spouse can ask for temporary spousal support as early as the date of the divorce filing. Temporary relief ends when the judge finalizes the divorce. An award of temporary support doesn’t guarantee a new, ongoing order of rehabilitative or permanent support.
The duration of rehabilitative and permanent support depends on the above-listed factors and the judge’s discretion. Typically, rehabilitative spousal support only lasts as long as it takes the supported spouse to acquire necessary training or skills to enter the workforce. Rehabilitative and permanent support will end if the supported spouse remarries or if either party dies.
Either spouse can ask the court to modify or terminate the support order if that party can demonstrate a significant change of circumstances since the original order. For example, if the supported spouse isn’t making a good-faith effort to become self-supporting, or if the paying spouse becomes ill or disabled and can no longer make payments, the court may modify or end the support.
The court will dictate how the paying spouse will pay spousal support. Sometimes, in cases where one spouse owns a significant amount of separate property or money, the court will allow the paying spouse to provide a lump-sum payment of property or cash to the recipient spouse.
Lump-sum payments are beneficial to the paying spouse because it eliminates the ongoing need to make payments or the possibility of the recipient asking for an increase in support later. The recipient spouse will benefit from a lump-sum payment as well because there’s no need to worry about the other spouse failing to pay in the future. However, lump-sum payments eliminate the possibility of changing the award later.
Typically, the court orders periodic payments, usually monthly. The court will issue an income withholding order to the paying spouse’s employer, which directs payroll to withdraw the spousal support from the employee’s paycheck. Income withholding is beneficial unless the paying spouse changes jobs and doesn’t inform the court or voluntarily stops working to avoid payments. In cases where the paying spouse fails to follow the court order, the recipient spouse can request intervention from the court to recoup the missed payments.
If the court finalized your divorce before December 31, 2018, the Internal Revenue Service (IRS) allows the paying spouse to include payments as a tax deduction and the recipient spouse must report the spousal support payments as income. However, recent changes to the Tax Cuts and Jobs Act eliminated any tax deduction or income reporting requirements, meaning the paying spouse doesn’t get a credit, and the IRS doesn’t count the support payments as income for the recipient.
Parties negotiating their spousal support arrangements should consider the new tax changes before moving forward with any agreement.
An important note for California divorces: California state tax law still requires the recipient of spousal support to list the payments as income and allows the paying spouse to claim the deduction for purposes of state tax returns. If you’re unfamiliar with the tax requirements, contact an experienced attorney to learn more.