Spousal Support FAQ

Q: What is spousal support?  What is Alimony? 

Alimony and Spousal Support in CaliforniaSpousal support is the term used for payments from one spouse to another after a divorce for the purpose of maintaining the former spouse at a standard of living similar to that enjoyed during the marriage. You may be more familiar with the word “alimony” which is the same as “spousal support”. Spousal support laws seek to prevent a divorced spouse from suffering from a decrease her standard of living. Often times after divorce, one spouse is untrained or has been out of the workforce for such a significant amount of time that it would be difficult for them to quickly attain a job or professional position that would allow them to maintain the standard of living that they may have had while they were married.  Spousal support in California is meant to bridge the gap between the time it takes for that spouse to obtain employment or resources for that spouse to met her own needs.  Throughout these questions and answers the words “spousal support” and “alimony,” are used interchangeably

Q: Do all divorces or separations involve spousal support?

No, this is a common misconception. Only about ten to fifteen percent of all divorces or separations have any sort of spousal support as part of the final divorce judgment or decree. You may think most do involve spousal support since those divorces that do involve spousal support are typically litigated.  

Q: Why should I care about spousal support? 

Spousal support is often the largest financial obligation you will incur as part of your divorce.  This obligation, which can last for several decades if you are not proactive, can end up costing you hundreds of thousands of dollars. Just do the math—if you are ordered to pay $1,500 per month that amounts to $360,000.00 over a 20 year period!!  Spousal support will certainly be one of the largest financial issues in your case!  If you can even reduce the amount by $500 now and do nothing else this would amount to $120,000 over the same twenty years. 

Q: Doesn’t the court just run the “DissoMaster” Computer program and arrive at a spousal support amount?

While the court may use a computer program or guideline to calculate a temporary spousal support amount pending trial in the matter, the court is not allowed to use the DissoMaster in calculating permemenent supportIn re Marriage of Olson (1993) 14 Cal.App.4th 1, card ß{SpSu 624.02} Permanent spousal support order based on DissoMaster reversed for failure to consider all 4320 factors.  

Q: My spouse had multiple affairs during our marriage. Will this affect the amount of support? 

California is considered a no-fault jurisdiction.  Accordingly, the court will not consider your spouse’s infidelity in determining spousal support.  However, if your spouse is cohabitating (living under the same roof with a spouse of the opposite sex in a romantic relationship) the court must presume that she has decreased need for spousal support.   

Q: Should I avoid going to court because of the high cost involved? 

Not necessarily!  It’s always a good idea to try to negotiate an out of court settlement to save legal fees, but often there are significant advantages to actually litigating spousal support.  In many cases if you reach an out of court settlement the spousal support order is indefinite in nature—it continues on forever.  Also oftentimes such out of court settlements do not establish the “marital standard of living” an exact dollar amount that is necessary for your spouse to have in order for them to continue to maintain the “marital standard of living.”   If you don’t have such a finding regarding the dollar amount necessary to satisfy the standard of living it will be very hard to come back in the future and seek to modify or terminate the spousal support.  Oftentimes such settlements don’t take into account your spouse’s earning capacity as established by the testimony of a licensed vocational counselor.  And often there is no “Gavron Warning”.  If you look at this issue as a long-term obligation that can span several decades, then you may have a significant advantage in litigating alimony to ensure that you have set the case up correctly for eventual termination of spousal support.  All to often the paying spouse is in a hurry to get their divorce over with at all costs, and does not consider the long-term implications of paying spousal support for 10-20 or more years into the future with no relief in site.  Litigation often offers tremendous advantages in resolving spousal support in your favor. 

Q: What is the ten year rule? 

In California marriages of 10 years or more are considered marriages of long duration, and as such the court is not allowed to set a definite termination date for spousal support at the time of trial.  Many people and attorneys misinterpret this rule to mean that California has lifetime spousal support in marriages of long duration.  This is clearly NOT the case as is proven by the citation below: 

    As recognized by our Supreme Court the public policy of this state has progressed from one which “entitled some women to lifelong alimony as a condition of the marital contract of support to one that entitles either spouse to postdissolution support for only so long as is necessary to become self-supporting.”      

In re Marriage of Schmir (2005)  134 CA4 432.  Also note that while the court can not terminate spousal support by a certain date, they are still allowed to provide that spousal support will terminate by a certain date unless the supported spouse makes application to extend the support on or before that date.  In marriages that are just over the 10 years, or where the spouse has excellent career prospects, this is often a fruitful strategy to pursue.  In marriages of less than ten years spousal support is presumed to no longer than for half the length of the marriage. 

Q: Can I stop paying support when I retire?  

Under a recent case called In re Marriage of Reynolds (1998) 63 Cal.App.4th 1373  you are entitled to retire at age sixty five and can not be required to work to support your spouse beyond that age.  Arguably if you are forced into early retirement you may be able to convince the court that you should not have to continue to pay support. 

Q: I’m up for a big raise. Will this affect my payments? 

No.  Under a case called Hoffmeister II the court can not consider your increased post-seperation earnings as a  basis for awarding support beyond that which is justified by the marital standard of living. 

Q: My income just went way down. Can I get my payments reduced? 

YES. If you have been involuntarily terminated, or had your income reduced, you should be able to receive a temporary abatement of support.  And in many cases, if you are unable to obtain comparable employment, and have to take a pay cut, you may be able to receive a permanent spousal support reduction or even termination. 

Q: I’m self-employed. If I earn less, can I reduce my support. 

YES.  If your business has been effected by the recession and you are earning less you should be able to lower your spousal support obligation. 

Q: I’m self-employed, if I work less can I pay less? 

Possibly.  Under California law you can only be required to work a “reasonable work regimen.” If you are working well above that which is typical in your field of work you may  

Q: I was ordered to pay my former spouse a percentage of my bonus or overtime income on a monthly basis.  Is this legal? 

These kind of orders are known as “Smith-Ostler” orders and are very problematic in the area of spousal support.  First, unless there is an annual cap these orders may end up providing your former spouse with way more spousal support than is consistent with the marital standard of living.  Second, these orders are difficult to enforce and calculate.  While there are some circumstances where these type of orders are necessary, they are not beneficial to the spouse that is paying spousal support.   

Q: My ex-spouse is up for a big raise. Can I pay less after that? 

YES.  If the supported spouse earns more it is likely a good reason to go to court and have their support reduced or terminated. 

Q: My spouse doesn’t work and doesn’t want to. Can I force her to become self-supporting? 

YES.  Well you can’t force them to get a job, but you can obtain a vocational assessment and if they have not sought employment within a reasonable period of time you can have the court consider lowering or terminating their support.  They can also be “imputed” income, e.g. the court can assign them with fictional income if you can prove that they are purposefully avoiding employment and that there are positions available consistent with their abilities.  

Q: My spouse claims to be disabled?  Is there anything I can do about this? 

Yes.  Oftentimes I see very non-specific claims of disability for “stress” or “depression” and the former wife claims she can not return to the workforce due to these types of conditions.  In other cases there may be a valid disability but the disability that may impact certain types of employment, but there may be other fields that are available.  For instance, someone who has a back injury may not be able to lift heavy boxes but may be able to work at a computer terminal.  In many cases I recommend that we obtain an Independent Medical Evaluation regarding the spouse’s medical condition to see what limitations exist, if any.  And once the Independent Medical Evaluation is completed we then retain a licensed vocational counselor to make recommendations as to what type of employment is available taking these limitations into consideration. 

Q: Will the division of assets have an effect on support? 

YES.  If your spouse is awarded significant assets, or if you make significant equalization payments over time, this should be considered as a mitigating factor against spousal support. 

Q: Can I avoid paying support by declaring bankruptcy? 

Spousal support obligations are generally non-dischargeable in bankruptcy.  Filing bankruptcy will not help you avoid spousal support. 

Q: Will I get any relief from support through taxes? 

Spousal support payments are generally tax deductible to the payor and taxable to the recipient.   

Q: My ex-spouse has started living with her new lover. Can I use this to reduce or end support? 

YES.  This situation is known as cohabitation and is generally a good reason to significantly lower if not totally eliminate spousal support obligations. 

Q: My ex-spouse is getting married again. Does this mean I can finally stop paying support? 

YES.  Your obligation to pay spousal support ends upon her remarriage.  You may need to obtain an order terminating a wage assignment if there is a wage-assignment in place.  Set Up a Phone Consultation to Determine Your Options Click Here to Get Started Right Now