Sacramento Family Attorney-October 21, 2019

For many people considering divorce or dealing with a current divorce case, one of the first questions for their lawyer is: Am I entitled to spousal support? And, as with many questions clients have for their family law attorney, the answer is: It depends.

How to Get Alimony/Spousal Support

If you are entitled to spousal support, you do not need to wait for your divorce to be finalized.  A spouse can ask for support to be paid while the parties’ case is proceeding in the form of a “temporary spousal support order” or a “temporary partner support order.” Support can also be ordered once the divorce or legal separation becomes final. This is called “permanent (or long-term) spousal or partner support.”  Either spouse may request a spousal support modification if there is a changes in financial and living circumstances.

Spousal support is generally awarded to a spouse who has been out of work during the marriage or makes a lower income and needs the support of the other party even after the divorce. A spouse’s need for support is not just limited to basic necessities; it is also judged in terms of the parties’ station in life during marriage and before separation.

How does alimony work?

Not everyone is entitled to spousal support.  Just because you are getting divorced does not mean that you or your spouse will be entitled to spousal support.  A spousal support award is not mandatory in dissolution or legal separation proceedings. Support can be denied or limited amount and duration based on the parties’ abilities to provide for their own needs. The Court will determine support with a fact-intensive analysis and formulaic calculation based on all circumstances regarding the standard of living established during the marriage and the parties’ respective needs and abilities to pay.

Each case has different facts and circumstances, and when determining spousal support the California Family Code instructs courts to consider and weigh all of the following factors:

  • Each party’s ability to maintain the marital standard of living in light of earning capacities;
  • Contributions to other spouse’s education, training, etc.;
  • Supporting spouses ability to pay;
  • “Needs” in light of marital standard of living;
  • Parties’ assets and debts;
  • Duration of the marriage;
  • Employability of the custodial spouse vs. impact on children;
  • Age and health of the parties;
  • History of domestic violence;
  • Tax consequences;
  • Relative hardships;
  • Goal of self-support;
  • Spousal abuse conviction as basis for support reduction or termination; and
  • Other “just and equitable factors.”

A party’s earning capacity is measured by looking at factors including: the marketable skills of the spouse receiving support, the job market for those skills, the need for education or training to develop or acquire marketable skills, and whether the supported spouse’s earning capacity has been impaired by that spouse leaving the workforce to devote time to domestic duties such as raising children. In some cases, expert vocational assessments are used to examine a spouse’s marketable skills based on age, health, and other relevant factors and to help take the guess-work out of this important factor when determining spousal support.

Although support orders are usually based on the parties’ present income, the Family Code does permit a court to consider the spouse’s ability to earn in addition to actual income. In other words, a spouse should not be able to avoid financial responsibilities to a spouse by quitting work, retiring early, not seeking gainful employment, or hiding income.  A court can also consider a party’s unearned income, or prospective earnings, such as future bonuses or stock option income, when ordering spousal support.

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