Spousal Support in California

What is Spousal Support in California?

Spousal support, also called alimony in California, aims to provide financial support from one spouse to another.

The main purpose of these payments is to help a spouse with a much lower income to cover their living expenses until they become self-supporting again, e.g., acquire additional training to get a job.

A divorcing couple may agree on the period and amount of spousal support in a prenuptial or settlement agreement. However, if the spouses can’t compromise on this issue, they must go through a court trial.

The judges will consider the request for alimony and decide whether to grant it.

They will also determine the period and amount of support, taking into account all relevant circumstances. In all cases, there is no state statute of limitation (limited period of time) that a person can request spousal support if it was stipulated in the decree (California Family Code, Section 291).

Is Spousal Support Mandatory in California?

The short answer is “no.”

Spousal support is not mandatory in California and will be awarded in divorce on a case-by-case basis. For instance, if both spouses are employed and receive similar incomes, neither party will receive or pay spousal support.

The same is true of short marriages.

Suppose a marriage only lasted for a year or so. In that case, it’s unlikely that a judge would award spousal support since the spouses didn’t have enough time to make significant career sacrifices for the benefit of the family.

Non-Modifiable Spousal Support

Non-modifiable spousal support means no one can change the amount and period of receiving it once the spouses obtain the final court order.

California courts have jurisdiction to modify temporary and long-term spousal support.

However, when the parties sign a written agreement or a few other circumstances occur, the courts can’t modify it.

Several events may make spousal support unmodifiable:

• The spouses agreed in writing or via oral testimony in court that the support order could not be changed (modified) or revoked.
• The support order was entered in another state with exclusive jurisdiction to modify it under their laws.
• The amount and duration of alimony ordered by a California court cannot be changed in another state while California holds jurisdiction over it.

The Difference Between Alimony and Spousal Support

Alimony has the same meaning as spousal support in California.

The words are used interchangeably to refer to financial support paid from one ex-spouse to another after divorce or legal separation. For example, the general public mainly uses the term “alimony,” while lawyers and judges use “spousal support” in the same context.

Types of Spousal Support in California

There are two essential types of spousal support in California: temporary during the trial and long-term post-divorce.

There’s no rule that a spouse seeking financial assistance can only receive temporary or long-term support.

They can receive both (one after another), only one, or none, depending on the judge’s decision or upon agreement between the spouses.

Temporary Spousal Support

Temporary spousal support, also called pendente lite in California Family Code, is the money paid from the beginning of the divorce proceedings until the divorce is final.

Its duration depends on how quickly the couple gets a final decree.

The spouses may reach a settlement agreement and divorce after a mandatory six-month waiting period, and that will be the end point of temporary support.

However, if the couple goes to trial, their divorce may take a year or longer, during which temporary support might be the only source of income for a recipient spouse.

Long-Term Spousal Support

Long-term, or rehabilitative, spousal support in California is financial assistance that one spouse pays the other after divorce for the period established by the court order.

It aims at helping a spouse with insufficient income or property maintain a reasonable standard of living until their circumstances improve.

The couples may include provisions on alimony in a settlement agreement. If they can’t agree, the judge will decide whether they need long-term maintenance and determine its amount and duration during a trial.

How is Spousal Support Calculated in California?

Calculating spousal support in California differs for temporary and long-term support.

California courts determine it using several software programs that produce specific sums of alimony, depending on the income, tax liabilities, etc.

Since temporary alimony is relatively short, the judges do not usually consider various factors they pay attention to when determining long-term spousal support, discussed later in the article.

How is Temporary Spousal Support Calculated?

Temporary spousal support is usually easier to determine than long-term spousal support.

California courts use a computer program, such as Dissomaster, or a specific formula to calculate this support amount.

Although calculations may differ slightly between the counties, most use a similar formula for temporary spousal support. A common approach is to start with 40% of the higher-earning spouse’s net income and then subtract 50% of the lower income.

Let’s look at the following example:

• One spouse earns $4,000 monthly, while the other earns $8,000.
• 50% of the lower income is $2,000, and 40% of the higher one is $3,200.
• The monthly support would be $1,200 (=$3,200 - $2,000). Therefore, the spouse who earns more will pay $1,200 each month to the other spouse.

However, these guidelines are not mandatory, and the judge can award a slightly different amount of support.

How is Long-Term Spousal Support Calculated?

California courts do not have a specific formula for calculating long-term spousal support.

Instead, the judges must analyze the divorcing couple’s circumstances by using the list of factors in Section 4320 of the Family Code:

• Each spouse’s capacity to maintain a reasonable standard of living close to what they had during the marriage;
• The recipient party’s marketable skills, the earning potential, and the time needed to acquire additional retraining or education;
• The extent to which the supported spouse’s marketable skills and earning capacity were impaired by unemployment during the marriage to perform domestic duties and taking care of minor children;
• The contribution of the recipient spouse to the other party’s education, training, or attaining professional license or a career position;
• The supporting party’s ability to pay alimony, their earning capacity, income, and assets;
• Each spouse’s needs, which are based on the standard of living during the marriage;
• Each party’s assets, separate property, and financial obligations and debts;
• The recipient spouse’s ability to get a job without interfering with the interests of any minor or dependent children in their care;
• The duration of the marriage;
• The age and health of the spouses;
• Documented evidence of abuse and domestic violence, etc.

After considering the above factors, the judge will decide on the fair amount of long-term alimony and its duration.

Who is Entitled to Spousal Support in California?

California courts do not have an automatic procedure to award spousal support in a divorce.

Therefore, a spouse who wishes to receive alimony must request it by filing appropriate divorce forms with the court.

To be eligible to get spousal support in California, a person must prove that their financial circumstances do not allow them to maintain a reasonable standard of living and cover monthly expenses on their own.

In addition, they must show that their spouse has the capacity to provide this support.

Under California Family Code, a person will not pay spousal support to their spouse convicted of a felony for domestic violence, sexual assault, or attempted murder against the other spouse (Califonia Family Code §§ 4324, 4324.5, 4325).

How Long Does Spousal Support Last in California?

Spousal support duration in California depends on the marriage duration.

As a rule, spouses married for less than ten years receive alimony payments for up to half their marriage duration, depending on the judge’s discretion. For instance, if a couple is married for five years, the length of alimony might be 2.5 years.

As for long-term marriages, figuring out how long the alimony should last is more complicated. In particular, no set rule establishes the duration of maintenance for spouses who have been married for more than ten years.

Instead, the court will consider all relevant factors in § 4320 of the California Family Code.

One of them specifies the goal of spousal support, which is to support the spouse in need of alimony until they become self-supporting, and it should take “a reasonable period of time.”

Here’s an example.

Suppose you were married for 11 years and both are in your thirties. The spouse with a higher income will likely pay alimony to another spouse. However, the duration may be about three or four years if the judge believes it will be enough for the receiving spouse to find a well-paid job.

Spousal support orders for long-term marriages often have an open date for termination, meaning that the judge does not specify a date when the support ends. In this case, the paying spouse must return to the court and ask for the post-judgment modification.

What is The 10-Year Marriage Rule in California?

The 10-year marriage rule in California means that all marriages that last ten or more years are long-term and consequently have a different approach to alimony.

The 4336 Section of the California Family Code says that a judge has indefinite jurisdiction over spousal support unless the spouses agree otherwise in a written agreement.

It does not mean that the alimony will last forever for long-term marriages. It only means that the court has ongoing jurisdiction to make changes regarding spousal support, such as reducing or extending it.

Can Spousal Support Last Forever?

For long-term marriages, judges don’t usually set a termination date on the support order, and in theory, support payments can go on indefinitely. However, the court usually includes the provision that the established amount of alimony will be paid “until further order of the court.”

It means that a paying spouse must come back in the future to ask the judge to modify and terminate the support order. To do it, the obligor must also demonstrate significant changes in financial circumstances that justify the modification of alimony.

When Does Spousal Support End in California?

Under California Family Code, Sections 4335, 4337, and 4323, spousal support ends in several cases.

• When either party dies.
• When the spouse receiving support remarries.
• The alimony terminates upon the arrival of the date provided in the support order. However, if the spouses did not specify in writing or oral testimony that the maintenance should be non-modifiable, the court retains jurisdiction and can extend spousal support after the end date of the original order.
• Alimony may be reduced or terminated if the supported party cohabits with a non-marital partner.

Can I Stop Paying Alimony When I Retire?

Retirement does not automatically end spousal support obligation in California unless there is a provision in the final order to terminate alimony after you retire.

However, your income will likely decrease after you retire, and you can use this circumstance as a valid reason to ask the court to modify your spousal support order.

The courts will also pay attention to the age at which you decided to retire.

For instance, if it’s lower than a traditional retirement age for your profession, the judge may feel your request is poorly-grounded. However, if you’re retiring earlier because of the illness, you have a good chance for the court to grant your modification request.

When deciding whether to reduce or terminate a support order because of retirement, the court will consider the same factors as when issuing the original order, e.g., the need for alimony and the ability to pay it.

So, if both spouses have similar financial situations (retirement benefits, expenses, etc.), the court may terminate spousal support.

Can I Modify a Spousal Support Order?

Either spouse can ask a judge to change the amount and duration of the alimony while the court has jurisdiction over it. However, if the couple agrees in writing that their support order is non-modifiable, the court cannot change it (Family Code, Section 3651 (d)).

Generally, a spouse asking for modification of spousal support order must demonstrate a valid reason.

The most common are material changes, such as reduced or increased income from getting a new job, retirement, remarriage, or cohabitation.

How to Modify Spousal Support?

In California, if there is a significant change in any spouse’s financial circumstances after divorce, they may ask the court to modify the spousal support order.

These are the steps to modify alimony in California:

• Prepare information proving that your financial circumstances have significantly changed.
• Obtain the blank Request for Order form (FL-300) and fill it out. Check “Change” and “Spousal or Partner Support” at the beginning of the document.
• Complete and file Notice of Motion and Motion for Simplified Modification of Order (FL-390).
• Complete additional forms: Spousal or Domestic Partner Support Declaration Attachment (FL-157) and Income and Expense Declaration (FL-150).
• File these forms with two copies and other documents supporting your cause (checks, bills, etc.) with the same court that issued the original support order.
• Pay the filing fee ($60) or request a fee waiver (form FW-001).
• Serve the other party with copies of filed papers and a blank Responsive Declaration to Request for Orders form (FL-320).
• Make a copy of the signed Proof of Service that a process server completed after giving the paperwork to your spouse.
• File the original and a copy of the Proof of Service with the court.
• Attend the court hearing. The judge will decide whether to grant a request and issue an order (form FL-340).

Paying Spousal Support in California

Earnings assignment order is the most common method for paying spousal support (form FL-435).

It instructs the paying party’s employer on how much money to deduct from each paycheck and send to the supported spouse. If the order includes child support, the employer must send the money to the State Disbursement Unit, and they will transfer it to the recipient.

If the paying spouse is self-employed, the judge will order them to send the support payments directly in cash or by check to the supported spouse or create a trust fund to secure alimony (California Family Code, § 4339).

The spouses can also agree to put the earnings assignment order on hold by filing a written agreement and form FL-455.

The order won’t be sent to the paying party’s employer. Instead, the supported spouse will receive alimony directly from the other party. If the payor stops support payments, the court can send the earnings assigning order to the paying party’s employer.

Another way to pay spousal support in California is by giving the spouse a one-time payment or part of the property. It’s also called lump-sum alimony.

But this method has its disadvantages.

For instance, if one party needs more alimony in the future, the courts cannot award it.

What Happens if My Former Spouse is Refusing to Pay Spousal Support?

Each support order has a specific date for when the payment period begins. If a supporting spouse is employed, the alimony payments come from the wage assignments.

However, a supported party might stop receiving payments, despite the court order being in place.

If a payor refuses to pay alimony in California, they might face some severe consequences, such as the following:

• They will owe 10% yearly interest on unpaid support.
• The court may order to freeze their bank accounts.
• Part of their property may be seized and sold.
• Some amount of their IRS may be given to the ex-spouse as unpaid alimony.
• They may pay a fine and face jail time if prosecuted for being in contempt of court.

How to Enforce Spousal Support in California?

If a paying party stops sending alimony payments, the supported party has several options to enforce spousal support.

• Request an income withholding order.

If your divorce decree did not include an earnings assignment order and your spouse paid you alimony directly, you can go to court and request a wage garnishment.

The order will be sent to the obligor’s employer, who will take an ordered amount of money out of the person’s monthly payment and send it as alimony to the supported party.

• Ask a lawyer to write a letter to your spouse.

Sometimes, these letters can be very persuasive, especially when they mention legal consequences that your spouse might face if they don’t resume alimony payments.

• Use the contempt of court option.

A paying party may be charged with contempt of court if they don’t obey the previous court orders, such as spousal support order. Usually, the person facing contempt charges will be ordered to pay the overdue alimony and a fine.

What is a Gavron Warning?

One of the principles of spousal support in California is to help the recipient party gain financial independence.

After a certain period, rarely specified in the court order, they should at least try to become self-sufficient, which may be added to the support order (California Family Code, § 4330 (b)).

To stimulate the supported party to find sources of income, California has a tool called a Gavron Warning.

A Gavron Warning is a notice that the court gives to the person receiving alimony that they must take reasonable steps to become self-supporting.

It got its name from the divorce case “In re Marriage of Gavron,” where the judge established that the spousal support would have been reduced or terminated unless its recipient started trying to gain financial independence.

The judges reserve the right to give or not give the Gavron Warning, depending on the marriage duration and other accompanying factors. The consequences of the recipient party’s lack of reasonable efforts in some cases may be a reduction or termination of support.

Taxes and Spousal Support in California

California state taxing and federal taxing may differ regarding spousal support.

For example, the state tax law in California requires a person receiving alimony to include it as income on their tax returns. But, at the same time, a party paying support can deduct them from the taxable income.

Federal tax law is slightly different, and the party’s tax responsibilities vary depending on the year they got the support order.

For instance, in all divorces finalized before 2019, the federal laws coincide with state laws where the payor deducts alimony, and the supported party reports it in their income tax forms.

For divorces finalized in 2019 and later, the paying party must include alimony in their federal tax forms. However, the maintenance recipients don’t have to report it as income and, consequently, pay fewer federal taxes.

Is Spousal Support Taxable in California?

Yes, spousal support, or alimony, is taxable income in California for state tax purposes.

It means that the recipient of spousal support must include the alimony payments as income in their state income tax forms. It also must be reported in federal tax returns for divorces with support orders obtained before 2019.

How to Avoid Paying Alimony in California

In California, there is a big chance that a spouse with a much higher income will pay alimony to the other party upon divorce.

Naturally, nobody wants to give part of their income to their ex for any period. So, how can you avoid paying spousal support in the first place? An understanding of California family law might help you accomplish this task.

You can use some strategies to decrease the possibility of paying alimony after divorce.

• Prove your spouse is abusive.

Under California Family Code, Section 4325, a person guilty of a domestic violence misdemeanor offense will not receive alimony payments from the other spouse in case of divorce.

• Stop increasing your income.

In California, the judge will look at the income of both spouses, among several other factors.

Alimony may be unnecessary if you and your spouse are employed and receive similar income.

Thus, stop working overtime if you can afford it and will be able to explain it in court. However, don’t quit your main job intentionally around the time of divorce because it would look suspicious, and the judge won’t like it.

• Don’t procrastinate filing for divorce.

Since spousal support is not mandatory in California, judges often won’t order it for short-term marriages. So, don’t put off your divorce if you are positive that it’s the right decision for you. The longer the marriage, the more likely that you will be ordered to pay alimony.

• Negotiate an agreement.

The ideal option not to pay alimony is if you have a prenuptial agreement with a waiver of spousal support provision.

If you don’t have this document, talk to your spouse and try to agree on this issue in a settlement agreement. You can trade off some part of the property in exchange for your spouse refusing alimony.

FAQ

What Happens If I Lose My Job and Can’t Pay Spousal Support?

You won’t automatically be eligible for termination of alimony obligation if you lose your job.

However, you can petition the court for a spousal support modification. Still, you must show a significant change in circumstances that prevent you from earning income, such as disability or severe health issues.

What to do When the Paying Spouse Intentionally Decreases Income?

If you have proof that your spouse intentionally decreased income to pay less alimony, you can petition the court and modify the support order.

In this case, the judge may increase the amount of maintenance calculated using the imputation of income (the income the person might or would have received based on their earning capacity).

What to do When the Spouse Receiving Support Refuses to Work?

If the supported spouse refuses to work, the party paying alimony can petition the court for a modification of the support order.

First, however, they must prove their ex-spouse can work and receive an income but refuses to. Then, the court may order vocational evaluation to examine the marketable skills, education, and employment opportunities (California Family Code 4331(a)).

What is the Difference Between Spousal Support and Maintenance?

Spousal support and maintenance are often used interchangeably.

Both terms refer to the same concept of financial support that one ex-spouse, usually with a much higher income, pays to the other party after divorce or legal separation. However, some contexts often use maintenance as a synonym for long-term post-divorce spousal support.