Area of Law:
Alimony, which is also called “spousal support,” is the continuation of financial support from one former spouse to another after a marital separation or divorce. The motivation of the court to accord alimony is to relieve the unreasonable economic burdens of divorce or separation that often arise because of the nature of the marriage. Alimony will be granted in the case that one spouse disproportionally relied upon the other for financial support during the marriage.
The amount of alimony is generally determined by a number of factors. The Uniform Marriage and Divorce Act, approved by the ABA in 1974, recommends determining factors in the amount of alimony granted, though the actual factors in practice may differ from state to state. Because the judge presiding over the case has broad discretion in considering all these factors, it is difficult to estimate the amount of alimony that will be granted going into the proceeding.
California Courts are less willing to decree spousal support than others. There is a general policy to restrict the issuance of alimony for rehabilitative purposes. In other words, alimony is looked at almost entirely as a vehicle for the recipient spouse to become self-sufficient. Though there are exceptions for people suffering from mental disabilities, the amount awarded is always limited to the lesser of 20% of the payer spouse’s average income or $2,500, whichever is less. Furthermore, the court may award spousal support only if the spouse from whom support is requested has been convicted of family violence within two years of the divorce, or if the duration of the marriage was 10 years or longer and the spouse seeking support makes a showing of reasonable need.
The factors governing the determination of how much spousal support is to be paid in California are laid out in Section 4320 of the California Family Code. The factors considered are: (1) the extent of earning capacity of each party, including marketable skills of the supporting party and any impairments to that ability; (2) the extent to which the supported party contributed to the attainment of education or training for the supporting party’s career; (3) the needs of each party based on the standard of living established during the marriage; (4) the obligations and assets of each party; (5) the duration of the marriage; (6) the age and health of each party; (7) the history of domestic violence, if any; (8) the immediate and specific tax consequences to each party; (9) the balance of hardships to each party; and (10) any other factors the court determines to be just and equitable.
If the divorce decree does not specify the length of time for the spousal support payments to occur, then the payments must continue until the court orders them to end. There are a few events that are likely to lead to the termination of alimony. Most alimony payments end when the recipient spouse remarries, though even the payer’s death will not end payments per se. The court may order that the alimony continue from the payer spouse’s estate or life insurance proceeds if the circumstances dictate.
Types of Alimony
There are a few different types of alimony. Temporary alimony is issued when the couple separates, but has not finalized their divorce. Once the divorce is finalized, the decree will specify the amount and length of the alimony ordered, if any.
Rehabilitative alimony is the most common type of alimony, which is given to a spouse for the sole purpose of supporting them while they take the necessary steps to become self-sufficient. It is generally given for a fixed period of time, at the end of which, it will be subject to review so the court can determine how to move forward with payments. The specifics of review, if there even is a prescribed review period, depends on the applicable state’s law.
Permanent alimony continues indefinitely – generally until the death of the payer spouse, the death of the recipient spouse, or the remarriage of the recipient spouse. Sometimes cohabitation can trigger the termination of alimony, but that varies on a case to case basis because cohabitation does not necessarily imply support.
Someone who is a party to a permanent alimony arrangement may request a change in their agreement through a motion to raise or lower alimony payments based on a material change in circumstances. Some examples of events that may qualify as a material change in circumstances are the cohabitation of one of the parties with another person, a drop in income of the payer spouse, or a raise in income of the recipient spouse.
Reimbursement alimony is designed to reimburse one spouse for expenses incurred on behalf of the other during the course of the marriage. One example of this is if one spouse supported the other while they went to college or another career training program. This applies in scenarios where the recipient spouse directly paid for the payer spouse’s education or training, and if the recipient spouse simply gave financial support to the payer spouse during his or her education or training.
The final type of alimony is lump sum alimony, which is a fixed payment, and cannot be returned even if what would otherwise be a basis for termination of alimony payments occurs after the payment is made. This type of alimony is usually made in lieu of a property settlement.