Calculating Alimony in California – basic terminology and overview
Before discussing Calculating Alimony in California, let’s look at what alimony is and what types of alimony exist.
Alimony is the series of payments that a higher-paying spouse pays to the other spouse during and after the divorce process. The purpose of alimony is to ensure both spouses are on a balanced financial footing to allow each of them to live somewhat the same lifestyle as they did during the marriage.
Types of Spousal Support in California
There are two main types of spousal support paid in California. These include temporary spousal support and permanent spousal support.
Determining Temporary (PENDENTE LITE) Spousal Support
When there is a pendency of marital dissolution, a court may order either spouse to pay any amount to the other spouse for support. Family Code 3600. The same is true in a nullity proceeding if the party for whom support is ordered is found to be a putative spouse. Partner support may also be ordered between registered domestic partners.
A spouse can request for temporary support as early as the time a petition is filed until the final adjudication of the case on appeal or until the time for appeal has passed. A supported party may also seek an order for temporary support pending an appeal.
There are limitations on a court’s authority to order temporary spousal support to an abuser in a case involving domestic violence and a prohibition on such an award if the spouse seeking support has been convicted of attempted murder (or solicitation of murder) of the other spouse.
Purpose and Amount of Temporary Support
The main purpose of temporary alimony is to maintain the status quo of the parties until their property has been divided. The court makes sure an amount is awarded that can maintain the living standards and conditions of the parties in as close to the status quo position as much as possible pending their case resolution. In calculating alimony in California, the court considers the supported party’s needs and the supporting party’s ability to pay. The court may also look at the parties’ accustomed marital lifestyle in making a temporary alimony order.
Use of Support Guidelines
Most courts use a guideline to determine temporary spousal support based on the income and itemized deductions of each party. Local rules may state whether the court has adopted a particular guideline, or the adoption of a guideline may be by custom. Computer programs designed for the calculation of “guideline” child support also typically have adjustments for the calculation of temporary spousal support under various guidelines. The guidelines also calculate additional support when a payor has fluctuating income and support is set on a base income the payor reliably earns each month.
Courts are not restricted by statutory guidelines in awarding temporary spousal, as such, they can award any amount. However, the court must equitably allocate the family income considering the needs of each party. The court may also consider other listed factors but it is not mandatory to follow these guidelines as it is the case with permanent spousal support.
Modification of Temporary Award
In the failure of a contrary written or oral stipulation in open court, temporary alimony can be modified by court at any time except to an amount that accrued before the date of filing of the notice of motion or order to show cause to modify or terminate.
Although there is some older authority to the contrary, current cases hold that a change in circumstances is required to modify a temporary spousal support order. A spouse can ask for modification if the paying spouse becomes disabled or ill and can no longer make the payment or if the supported spouse does not make any effort to become self-supporting.
Note that the court retains an inherent authority to reconsider a temporary spousal support order on its own motion, to correct an error.
Termination of Temporary Award
In the absence of a contrary written agreement or oral stipulation in open court, a court may terminate a temporary spousal support order at any time. A temporary spousal support order may also be terminated in case of any of the following events:
- Issuance of a judgment in the case
- Dismissal of the case
- Expiration of the order by its own terms;
- Death of either party; or
- Remarriage of the supported party
Calculating Alimony in California – Long Term Spousal Support
Permanent alimony in California is a specific type of spousal support that is detailed in a family law judgment. Unlike temporary spousal support, which is typically resolved with the finalization of the divorce process, permanent alimony carries a different implication. The term “permanent” can be somewhat misleading as it does not necessarily imply that these payments will continue for the lifetime of the recipient. Instead, it indicates that the support is intended to persist for a designated period post-judgment, which is determined based on a variety of factors.
The core distinction between temporary and permanent spousal support lies in their duration and the basis for their calculation. Permanent spousal support takes effect post-judgment and remains in place for a period determined by the court. This is in contrast to temporary support, which is generally superseded once the divorce judgment is entered.
Furthermore, when it comes to permanent alimony, California courts are required to take into account a comprehensive set of factors as outlined in the state’s family law statutes. These factors are designed to ensure that the support awarded is equitable and reflective of the circumstances of both parties. Among these considerations are the length of the marriage, the standard of living established during the marriage, the age and health of each spouse, and the earning capacities of both parties. This meticulous approach ensures that the spousal support awarded is fair and considers the unique nuances of each individual case.
In essence, permanent alimony is a more complex and tailored form of spousal support. It is designed to provide financial stability and fairness to the lower-earning spouse post-divorce, considering the intricacies of their shared marital life and individual post-marriage circumstances.
Mandatory Considerations in Setting Permanent Support
Courts have wide discretion in setting the amount and duration of permanent spousal support. However, this discretion is limited as it must consider all factors listed in family code and may not use a temporary support guideline.
The award of permanent alimony must also reflect the prevailing facts and circumstances, based on the evidence drawn from these circumstances. Courts cannot speculate about the future when calculating alimony in California. In case the existing circumstances change in the future, the spouse can file for the modification of the amount and duration of support.
Family Code and Related Factors
When calculating permanent alimony in California, the court must consider all factors listed in the family code Section 4320. A court’s failure to consider and weigh each factor in the family code is an abuse of discretion
Some of the factors in the family code that are considered when calculating alimony in California include;
- Earning capacity
- Goal to becoming self-supportive
- Contribution to the attainment of education or training
- Ability to pay
- Consideration of assets used for lifestyle
- “New Mate” Income Excluded
- Needs of Each Party; Effect of Child Support and Nonmarital Cohabitation
- Assets and Obligations of Each Party
- Duration of Marriage
- Age and Health
- History of Domestic Violence
- Immediate and Specific Tax Consequences
- Balance of Hardships
Income Tax Aspects of Spousal Support
With the implementation of the Tax Cuts and Jobs Act, alimony payments are no longer tax-deductible for the payer and are not considered taxable income for the recipient for orders issued after December 31, 2018. This change has a significant impact on how alimony is negotiated and calculated.
Calculating alimony in California is a detailed process that requires careful consideration of numerous factors, including the earning capacities of both parties, the duration of the marriage, and the standard of living established during the marriage. Both temporary and permanent spousal support are subject to different calculations and considerations. Given the complexity and the significant financial implications involved, individuals going through a divorce in California are strongly advised to seek skilled legal counsel to ensure that their rights and financial interests are adequately protected.
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