Divorce is one of the most common occurrences in San Diego today. Despite divorce being a family matter, it is wise to seek legal representation in Divorce court proceedings. You will want someone to guide you through this process so that you can get the best out of the situation, especially on the process of determining alimony.
Below is a comprehensive guide on a divorce settlement and alimony determination as shared by our divorce attorneys at San Diego Divorce Attorney law firm.
What is Alimony?
Alimony, which is also known as spousal maintenance or support, is the legal obligation where one spouse is required to provide financial assistance to the other spouse after a divorce or legal separation takes place. The primary purpose of spousal support is to ensure that the spouse with lower or no income can maintain their standards of living after the separation.
The receiving spouse gets the support until they are financially independent or even for a lifetime depending on the terms set in court. Spousal maintenance is mostly awarded if the marriage was long enough or the recipient had to sacrifice their career and source of financial income to take care of the other spouse or the children.
Who is Eligible to Claim Spousal Maintenance?
In most scenarios, the laws of California only recognize one spouse. To be legally eligible for alimony, this has nothing to do with love, but the ability to meet requirements of marriage. Some of these marriage requirements state that the couple must be legally eligible to get married to each other, the union should take part with consent from each spouse, and they have to be able to recall the facts of their married life.
Couples who have met these requirements are recognized as the legal spouses and are eligible to claim alimony from each other in the case of a divorce. Where the couple separates, and the separation takes long to get finalized, the spouse giving the maintenance may suffer inconvenience because of the legal costs associated with the divorce settlement process.
If the spouse giving the alimony dies before finalization of the divorce, the recipient will still be eligible for spousal support. For instance, the court may determine the alimony by considering the marital property.
In situations like bigamy where there exists more than one marriage certificate for an individual, the second marriage is nullified; hence, the spouse cannot seek alimony. Sometimes, the court makes exceptions and grants alimony to both spouses, but in this case, the first spouse gets more benefits.
The Difference Between Alimony and Child Support
After going through a divorce, in most cases, one spouse is obliged to pay divorce settlements to the other. The payments are either in the form of alimony or child support. Some instances require payment of both, hence, it is crucial to understand their difference.
Alimony is a settlement to support the spouse who earns less after a divorce. The aim of this arrangement is to enable them to continue living the way they used to do while married. Alimony gets paid regardless of whether the couple has children together or not.
On the other hand, child support is financial payments done by the parent with less custody to help raise the children. The child support payment is received by the parents who spend more time taking care of the children. Spousal support could continue for a lifetime, unlike child support which stops when the children turn between ages of eighteen and twenty-one years. Unlike alimony, money paid for child support is not eligible for taxation and is not viewed as income to the one receiving it.
What Do You Need to Know About Alimony Before the Divorce?
When you are planning to get a divorce, it is crucial to face reality. If you earn more than your spouse and your marriage has lasted for some time, the court is likely to ask you to pay spousal support. Where the marriage was short, or you and your spouse earn close to the same income, alimony isn’t expected to be awarded.
Like most issues regarding the divorce, you can agree with your spouse the amount and duration of spousal support. If you are not able to decide between yourselves, the court will decide for you in a trial.
If the court orders alimony, you will be required to pay the specified amount monthly until;
- Your spouse decides to remarry or cohabitate with someone else
- The court proves that the receiving spouse is able to secure a well-paying job
- One of you dies
- The children become of legal age and don’t need a full-time parental care
- The judge determines that your spouse is financially stable
- The occurrence of an event like retirement where you can try to convince the judge to modify the settlement terms
If you are the spouse expecting to receive the spousal support, you need to know whether you qualify and how much you are going to get after the divorce. Although you do not have to be earning at the time of court proceedings, knowing how much your spouse earns will help you have a better understanding of what to expect.
The court will require you to make some changes to your life like finding a stable full-time job. They will also follow up on your job prospects if you have been out of employment for a while.
Alimony is categorized as temporary or permanent alimony. The following sections cover how each of these alimonies is determined in California.
How is Temporary Alimony Determined?
Temporary alimony is the order for the support given by the court during a legal separation, marriage annulment, or divorce. When one of the spouses file for the case, a hearing date is set, and each spouse is required to have a declaration for their income and expenses.
Temporary spousal support is ordered to ensure both parties can live similar to how they lived during the marriage, before finalizing the divorce.
Most family attorneys have a guideline calculator, and the California courts use it to determine the amount of temporary support to be paid. The judge is required to put into consideration the needs of the recipient and the ability of the other spouse to comfortably pay.
Typically, for a spouse who has very little or no source of income, temporary alimony to be paid to them ranges between 30% and 35% of the supporting spouse’s income.
Can Temporary Alimony Terms Be Revised?
While the spouse earnings and ability to pay for the alimony are the main factors that the court considers before granting the request, these terms can get revised. The orders will undergo modification with substantial proof of change in the circumstances; hence, the spouse cannot plead immediate amendment of the conditions during a trial.
How is Permanent Alimony Determined?
Permanent alimony is support given from one spouse to the other after finalization of a divorce. Unlike the temporary maintenance, stable spousal support gets paid until the death of one of the spouses. Even after the paying spouse retires, the court expects them to continue the support payments to the receiving spouse.
Permanent spousal support is often awarded as support for wives who dedicated their role in the marriage to be a stay home mom rather than starting a career. A spouse who has left their jobs and will not be able to rejoin the workforce can also get permanent alimony.
Some of the factors that may influence a judge’s decision to award permanent alimony include;
- Length of the marriage
- A significant financial inequity
- The contribution a receiving spouse has made in career and lifestyle of the paying spouse
During the determination of permanent alimony, the most common factors include the age of the spouses, contribution to financial stability, and emotional well-being of both parties. For this kind of settlement, the court also considers presence and terms of a prenuptial agreement.
The conditions of permanent alimony can get revised only if the receiving spouse decides to remarry or they can secure well-paying permanent employment. In other cases such as when the paying spouse loses their job, permanent alimony payments can decrease or stop altogether.
The differences between temporary alimony and permanent alimony are:
- In case of annulment of a marriage, temporary spousal support is awarded; but permanent support is only given in the case of a divorce;
- The law allows the judge to use a computer (calculator) in the determination of temporary alimony whereas this method cannot be used to calculate permanent alimony;
- Temporary alimony is issued during a divorce case while stable spousal maintenance is awarded at the end of the divorce case;
- For temporary spousal support, the court only puts into consideration the recipient’s needs and the ability of the other spouse to pay while there are many factors which determine the awarding of permanent spousal maintenance;
- Temporary alimony is only valid until the court makes revisions or issues a new order; on the other hand, there lacks a specific end date for permanent spousal support;
- The judge orders temporary maintenance in the case where one party files the motion whereas permanent support is part of the final judgment after completion of the divorce proceedings.
Taxes and Alimony Records
For the paying spouse, alimony is taxable. It is, therefore, crucial to keep records. According to the republic tax bill of 2017, spouses paying the alimony are not allowed to deduct their payments for tax.
There are frequent disputes regarding the amounts that were paid or received, hence, adequate documentation could help save you from paying the alimony twice a month. There are varying documents which need to be kept by both the payer and the recipient.
The spouse paying for spousal maintenance should keep:
- The original checks used to pay for the support
- A list which indicates amount paid and the dates and address to which payment is made
- Documents signed by the recipient if alimony was paid in cash
The alimony recipient should make a list which shows that each payment is received. The file should contain:
- A photocopy of each money order or cheque used for payments
- Account numbers to which the payment is made
- Evidence of amount collected each month
- The date of each payment and the bank from which the withdrawals are made
Factors That Affect Spousal Support Determination
Generally, alimony is awarded based on the needs and abilities of the parties involved using elements such as:
- The earning capacity of each spouse. The paying spouse should earn more than the receiving spouse. The court also puts into consideration the receiving spouse’s marketability;
- Physical and mental health of both spouses. Permanent alimony is likely to be awarded for a spouse who happens to have a psychological or physical disability;
- The amount of contribution the receiving spouse made to the present financial status of the paying spouse is used to determine the amount and duration of alimony. Logically, a spouse who has been in the life of their counterpart for an extended period and helped them attain educational and career prosperity is likely to get more settlement regarding spousal support;
- Standards of living during the marriage period. The main aim of alimony payment is to ensure maintenance of the lifestyle enjoyed during the marriage;
- Duration of the union. For unions that have lasted more than 30 years, a higher settlement of spousal support is likely to be awarded as compared to shorter unions;
- Future parenting responsibilities. In California, if the couple has children together and the receiving spouse has full custody, the amount of spousal support is likely to be higher;
- Adultery. The court can use an act of adultery by either spouse to determine the spousal support payment. The circumstances under which the adultery was committed may also be used to deny the alimony.
How Can You Get Out of Paying for Spousal Support?
In some circumstances, you may not be able to escape paying spousal maintenance to your ex-partner. However, there may be a few things which could help you get out of alimony payment.
If you have proved that you earn less than your ex-spouse
Alimony is calculated based on the difference in the earnings of the spouses. If you can show that you make less than your ex-spouse, then you will be able to escape paying spousal support.
Requesting vocational evaluation
You may be able to avoid paying for spousal maintenance or even reduce the amount you will have to pay. This is achievable by proving to the court that your spouse has some educational qualification and can get themselves a well-paying job.
If your marriage lasted for a short time
For marriages that have lasted for decades, the judge will order you to pay permanent spousal support. However, if your union was brief, the court could only grant alimony for a short time until the other spouse obtains a job to support themselves.
Requesting for modification of terms
The decree of permanent spousal support after divorce does not mean that the conditions cannot undergo revision. If you can prove that your ex-spouse remarried or is cohabitating with someone else, you can request cancellation of alimony payments.
The court can also reduce amounts you pay in case of income drop or job loss.
Quitting unhappy relationships early enough
If you are not happy in your marriage or fearful that it will end up in a divorce, you can decide to separate and file for the divorce before it is too late. Judges will often deny alimony for short marriages.
Paying property taxes
If in the divorce settlement, you happen to obtain a property for which tax payment is a requirement, it would be wise to acquire that property. By doing so, the amount you are required to pay as alimony could significantly decrease.
Signing a prenuptial agreement before marriage
If you are planning to get married, and you fear to be the one to pay for spousal maintenance in case of a divorce, you may be able to escape the situation by signing a prenuptial agreement with your spouse to be. Thus, they won’t be entitled to spousal support from you in the event of a divorce.
Prenuptial agreements are most applicable in cases where one partner is already financially established and stable at the time of marriage.
Payment of spousal support is a court order like any other hence its settlement is compulsory. Failure to comply with the law is acted upon as contempt of court. The court may decide to pursue a criminal case to compel the payer to obey the order.
Can I Get Help from a Divorce Attorney Near Me?
If you are undergoing a divorce or separation, you will require a lawyer to represent and guide you through the legal process. During this time, you will want someone to help you get your fair share of assets and benefits from the ended marriage. San Diego Divorce Attorney has experienced divorce attorneys to guide you through the divorce settlement and alimony determination process. You can contact divorce lawyer at 858-529-5150 for any inquiries and receive a free consultation.
