California alimony laws and rules are at the heart of nearly every divorce case.
Long term marriages of 10 years or more or short ones, middle class income or the most wealthy, divorce alimony laws affect each spouse’s decisions on how they will handle their case, its length and complexity, settlements and, in contested cases, can become one of the most complex aspects of a California divorce trial.
Alimony can also become a heated issue. The higher earning spouses don’t like paying it. The lower earning spouses, such as stay at home moms going through a divorce, insist on receiving it. Unless a compromise can be reached, the issue of how much alimony should be paid and for how long sometimes results in court battles.
In this comprehensive page, we will discuss:
- How California alimony is calculated on a temporary and permanent basis?
- How California alimony laws allow upward or downward modification?
- How alimony in California is terminated in long-term and short-term marriages?
We will also give you tips and insight on how we have seen California divorce and alimony laws applied in certain kinds of divorce and post judgment cases.
Alimony is synonymous with the word “spousal support”, which is the word used in the California Family Code. We will also use spousal support or just “support” from time to time in this page.
Should you have any questions about what you read, please don’t hesitate to contact our divorce lawyers in Orange County.
Nothing in this page should be interpreted as legal advice nor is it intended to address your specific factual situation. Advice about California divorce alimony laws and procedure should only come from direct communication with an attorney and after the attorney has analyzed your facts and issues.
The family court has the power to award alimony in a pending California divorce
California alimony law states that in a divorce or legal separation case that is pending, the Family Court has the power to order either spouse to pay support to the other. The amount of the support is in the amount that is necessary for the support of the other spouse.
California divorce and alimony laws allow retroactive orders that go back in time
Retroactivity is something that we have talked about on the pages of this family law site. To review, a retroactive order is one that goes backward in time and starts from that prior date. For example, if a California alimony order is made on December 1, 2013, and the support order is deemed to be retroactive to August 1, 2013, August 1, 2013 becomes the date that the alimony starts even though the court made to order in December.
California alimony orders can go back as far as the filing of the petition for divorce or legal separation. Under certain circumstances, they can even be sought in annulment cases although those are more unique. Some believe California alimony rules only allow a retroactive order to the date the request for alimony is formally filed with the court. While there is disagreement, case law in California has taken alimony back retroactively to the date of the filing of the petition.
California divorce alimony laws allow temporary support before judgment
Before there is a final judgment, California divorce law give the court the power to order temporary alimony based on a spouse’s need and the other spouse’s ability to pay.
Contrary to what many family law lawyers will tell you, Family Code 4320 can be considered by the court when evaluating a temporary alimony order. We will discuss Family Code 4320 later on in this article. In a temporary order setting, the court will generally not delve into the specifics of section 4320 but will use it as a guide when the computer formula is not as helpful.
Temporary alimony in California is generally based on the same computer program used to calculate child support
The computer formula to which we refer is the same computer program used to calculate guideline child support in California. Whether the program Dissomaster or X-spouse (or any number of others) are used, the same parameters as you would enter for child support (including income, tax filing status, exemptions, certain allowed deductions) are entered for alimony in California.
The program determines what the net disposable income is and what alimony should be on a temporary basis. The program is not used for permanent alimony in California. The Family Code forbids it.
The calculation of alimony is based partly on the amount of child support
If the spouses have children, this alimony calculation is typically made alongside the child support calculation and the amount of the alimony is dependent, in part, on the amount of child support ordered, which means that if the child support amount is eliminated, the alimony may increase.
When calculating income for alimony in California, the last twelve months is an appropriate benchmark in most cases
When calculating income to determine alimony, the court will typically goes back approximately 12 months. That time period is typically a fair and representative one of income, especially when income is fluctuating. There are no hard and fast rules. The Court can go longer. For the Court to go shorter would be a bit unusual.
What is the purpose of temporary alimony in California?
The fundamental purpose of temporary alimony is to maintain the status quo. This is a catch 22 for most spouses. Some families live on debt, borrow from savings and spend $1.10 of every $1 they make.
How is the court to determine status quo and order temporary alimony in such a situation? It is not easy. In fact, these are some of the hardest cases to litigate and resolve because the spouse requesting support will expect to continue to live at that same level while the other spouse may protest that there is no way he or she can maintain that level and still be able to pay for his or her own reasonable lifestyle.
In such situations, the court will typically look at the net disposable income of each spouse and how much “waste” there is within the monthly expenses that the spouses pay or claim they need to pay. It may come to pass that the alimony order will not provide for all the financial needs of the requesting spouse. Every factual situation is going to have its own unique characteristics and the advice of an experienced lawyer in such complex alimony cases is an important part of the process.
Is the computer program the final word on temporary alimony in California?
The computer program to which we refer is not the be-all and end-all of the temporary alimony calculation in California. The court has discretion to depart from the program in situations where a requesting spouse’s need is higher or the payor spouse’s ability to pay is materially less or more than what the computer program calculates.
In addition, if there are circumstances where there are unusually high expenses or tax consequences, the court can adjust numbers as necessary.
The court does have discretion when determining temporary alimony and it is not a black-and-white formula that is used in every case. However, spouses should not expect the court to diverge from the computer formula in temporary alimony situations unless there is evidence of a persuasive need to depart from it.
How is temporary alimony paid?
Temporary alimony orders are traditionally ordered to be paid by the payor directly to the payee. The court order will typically state that it shall be paid one half on the first and one half on the 15th of each month. The duration of the alimony is generally until there is a final judgment or any other date that the court sets.
What about situations where the payor spouse is self-employed and the final income numbers for alimony purposes are not determined?
In cases where the payor is self-employed, it is common for the court to set a temporary alimony amount that is without prejudice to either spouse (which means that it is based on the limited information the Family Court has) and subject to retroactive modification later on as the Court gathers more information.
However, there are two recent cases in our appellate courts called Marriage of Gruen and Marriage of Freitas that have complicated such orders. A full discussion of Gruen and Freitas will come in a future article. For now, know that such orders that are called “temporary” but with a reservation to retroactively modify them are complex and should not be handled in Court without the help of a family law attorney because, under certain circumstances, the retroactivity may or may not be enforceable.
Do California divorce and alimony laws allow a temporary alimony order to be modified before judgment?
Yes. Technically, the one requesting the alimony modification does not even need to show that there has been any change of circumstances. However, from a practical perspective, courts do not like to make modifications of temporary alimony unless there is a good reason for it. Simply walking back in the court and stating, “I want more money from my spouse” or “my spouse should be paid less,” without showing why there is an additional need, additional ability to pay or less of either may fall on deaf ears.
What about the court’s order of permanent alimony in California?
I used the word “permanent” order but that word is a bit of an oxymoron. Unless the alimony order is made unmodifiable by the agreement of the spouses and it is set to continue forever or until the death of the payor spouse, nothing is permanent.
Most alimony orders at the trial and judgment phase will continue for one half the duration of the marriage in short-term marriages (although the court has the discretion to order it for less or more time in less than 10 year marriages) or until the death of either spouse, remarriage of the spouse receiving support or further order of the court. The further order of the court language is what makes alimony modifiable in California in the future so long as there is a showing of a material change of circumstances.
What is the difference between how a temporary and permanent alimony in California is calculated?
The biggest difference between a permanent alimony order and a temporary one is that the court will not use and can not use the computer program to determine the amount. Final alimony orders at the time of judgment must be based on Family Code 4320. Family Code 4320 is the code section that goes through the determination of the standard living which was established during the marriage.
Family Code 4320 sets forth many factors. Most of the factors our common sense. Some of them require a deeper analysis. The ultimate goal is to reach a reasonable alimony order, if any is going to be ordered, based on the complete set of circumstances. We go through the Family Code 4320 factors below but first, lets discuss some special challenges the Court may face when evaluating Family Code 4320.
Special challenges to the Court when conducting a marital standard of living analysis
The court has significant challenges in certain types of cases. In situations where the spouses lived an unusually frugal lifestyle for their income, the court’s challenge is to determine whether or not the marital lifestyle will be consistent with the same level of frugality.
If the spouses lived an unusually frugal lifestyle and therefore accumulated savings or other investments, the court can set alimony consistent with that modest lifestyle to allow for savings.
Lifestyles beyond the financial means
In situations where the spouses lived well beyond their means, how is the court supposed to determine the marital lifestyle? Will the court look at liquidating assets or putting the payor spouse into further debt to maintain that lifestyle?
The court will typically look at the spouse’s income rather than what they spent. After all, spending beyond the means typically makes spending a poor indicator of lifestyle.
The workaholic spouse that established an unbalanced lifestyle
In situations where one spouse worked very long hours and not consistent with what could be maintained in the long run, the court has the discretion order alimony based on hours worked at a reasonable pace.
Taking care when presenting evidence
Both the payor spouse and the payee spouse should be careful and how they approach such cases because if the court is not provided with the complete picture and evidence, one of the spouses may leave the courtroom very unhappy. Once again, having a skilled California divorce lawyer helps in such situations.
The time period considered for long term marriages
The marital standard living and lifestyle can be difficult to determine in long-term marriages. For example, when spouses are married for over 20 years, what portion of that marriage is taken into consideration when determining lifestyle? Is its entire 20 year time period? How would that work if there has been a significant increase, significant decrease or wild fluctuations in the lifestyle of the spouses?
Does the court only look at the good times?
Typically, the court will look at the last five years of a long-term marriage as indicative of the marital lifestyle. That stops at the date of separation when there was a final and irremediable breakdown in the marital relationship. See our informative article on the date of separation in a California divorce.
Still though, that five-year mark is not a hard and fast rule. California family law judges are permitted to go for a shorter time or a longer time as they deem it necessary. Much depends on the consistency of the lifestyle in determining how far back the court will go.
Post separation income and impact on marital lifestyle and alimony in California
The court will generally not take into consideration post separation income when determining the marital lifestyle. That is because the marital lifestyle has to be based on the marriage so that if one spouse earns significantly more post separation because of a change of circumstances that is really not related to the marriage, that additional income may not be taken into consideration when determining the lifestyle.
A supported spouse however should look at whether or not that increase in income was related directly or indirectly to efforts made during the marriage. That may give the supported spouse an argument that the additional income received post separation is consistent with the sacrifices made during the marriage.
Now, let’s look at Family Code 4320 and how the Family Court may consider each factor in determining the final alimony number.
California Family Code 4320 governs how much alimony and for how long
California Family Code 4320 factor number one: The extent to which each party’s earning capacity will maintain the standard living that was established during the marriage.
With such a factor the court must take into account what might be required for the supported party to develop or acquire marketable skills and the extent to which his or her earning capacity is or will be impaired by any periods of unemployment during the marriage and time devoted to domestic duties. This factor is especially important for divorcing stay at home momsor dads.
The shorter the marriage, the shorter the alimony in California and the shorter amount of time that a spouse will have to become self-supporting. The longer the marriage and the longer that a spouse has been out of the workforce, the longer the alimony and the more leniency the family court will give regarding the inability to get back into the workforce.
It is common in California alimony cases for the spouse paying support to argue that the supported spouse is not making reasonable efforts to become employed. In such a situation, the burden of proof is on the supporting spouse to show that there is an earning capacity, ability and opportunity for the other spouse to become gainfully employed. This is very difficult to do absent a vocational examination pursuant to Family Code 4331. We talk this issue in an article about vocational evaluations in a California divorce and its impact on alimony orders.
California Family Code 4320 factor number 2: the extent to which the supported party contributed to the supporting party’s attainment of an education training, a career position or a license.
If one spouse made contributions to help the other spouse acquire education and that in turn increased the earnings of the other spouse, the court must take that into consideration.
This often occurs when you have a homemaker whose primary duty is to take care of the children while the other spouse obtains an education and a career which, over time, increases his or her earnings.
It would be unfair, pursuant to Family Code 4320, if the spouse who acquired the education and the earnings to, post separation, not give back to the other spouse for the sacrifices that were made during the marriage.
That is why the second factor exists – to balance the equities. Under certain circumstances, the court can even order reimbursement for contributions to education or training under Family Code section 2641.
California Family Code 4320 factor number three: the supporting spouse’s ability to pay, taking into account his or her earning capacity, earned and unearned income, assets and standard of living.
For a W-2 employee, income should be a piece a cake to calculate. We simply look at the year-to-date pay stubs and tax returns to determine what the income is.
While it is possible that a W-2 employee may have certain undisclosed income, that is typically the exception and not the rule.
Self employed spouses
However, for self-employed spouses, this becomes more complicated because a controllable cash flow analysis for alimony purposes generally needs to be conducted. That term “controllable cash flow” is not a legal one, but rather one commonly used by forensic accountants when determining income for support purposes.
Calculation of income for alimony purposes
There is no specific formula used when determining how much of a spouse’s income should be used for alimony purposes. The court does have discretion here although the Family Court will typically look at tax returns as a good starting point.
Actual earned income is not the only consideration.
Just as this factor states, earning capacity is also relevant. Think of earning capacity in this way – if a spouse is willfully underemployed or unemployed when he or she could be earning more money, the court has the power to impute income based on that spouse’s earning capacity.
This is not something that is done without evidence that is persuasive on the issue of the spouse’s unwillingness to work while having the opportunity and ability to do so. The Family Court will typically not look at an unusual or extraordinary work schedules in determining a spouse’s earning capacity. No spouse is obligated to work unreasonable hours to pay support.
California Family Code 4320 factor number four: each spouse’s needs, based on the standard living established during the marriage.
Notice that the Family Code specifically correlated “need” based on the standard living. That means a spouse’s need will not so much be based on post-separation circumstances but what existed at the time of the marriage.
Needs of course have to be reasonable. A lifestyle well in excess of earnings will generally not be supported by an alimony award in California, as we have discussed above.
The amount of money the spouses spent during the marriage is a good indication of need. If the spouses had a mortgage payment, two cars, and lived a middle-class lifestyle, chances are good the alimony award will be consistent with that lifestyle. Of course, everyone knows that maintaining two households is more expensive than one so the Family Court may make adjustments to the alimony award with that in mind.
California Family Code 4320 factor number five: each spouse’s assets and obligations.
These assets include both community property, separate property or assets that are a combination of each.
The reason assets are important is because they give an indication of each spouse’s net worth. Also, an asset does not need to be owned by a spouse for the court to take it into consideration. Just as Rockefeller said, own nothing and control everything. The court has the discretion to base an alimony award, in part, on assets that a spouse controls. Whether or not each spouses’ assets is a major factor in determining alimony depends, in part, on what happens with those assets during the divorce
If all of the assets are community property and are divided equally, the court will have a difficult time justifying a disproportionate alimony order based on the assets awarded because there was an equal award, placing the spouses in parity to each another. However, if one spouse has significantly more assets because those assets are his or her separate property, the court can appropriately make a higher or lower alimony order to offset the disparity between the spouses.
In short, the assets affect both need and ability to pay and can impact alimony in California upward, downward or not at all.
California Family Code 4320 factor number six: the duration of the marriage.
The duration of the marriage is one of the most important factors when determining the duration of the alimony. Contrary to popular belief, there is no set rule that a marriage of 10 years or more means an automatic lifetime alimony order anymore than a marriage of less than 10 years automatically means the alimony is only for one half the duration.
For example, in marriages that are 10 years or more, the court may determine that the supported spouse has the ability to become self-supporting and cut alimony at the halfway duration of the marriage. The closer to the ten-year mark, the more likely the court will at some point cut off the support. The longer the parties are married, the less likely that alimony will be terminated in a prospective order.
The days that a 10 year marriage means a lifetime obligation of alimony are in the past although the court certainly still has the discretion to order ongoing alimony without a predetermined termination date in marriages that are at or close to the 10 year mark. Once again, every fact pattern is going to be different and all of the Family Code 4320 factors have to be considered by the court, not just the duration of the marriage.
California alimony factor number seven: the supported spouse’s ability to engage in gainful employment without interfering with the interests of dependent children in his or her custody.
Think of it as a balancing test.
On the one hand, the court wants both spouses to become self-supporting and become gainfully employed.
On the other hand, the Family Court recognizes that the children cannot be an unreasonable sacrifice of that goal.
For that reason, this factor exists. If the children are very young and are highly dependent on the custodial parent, the more lenient the court will be regarding the custodial parent’s earning capacity and inability to become gainfully employed on a full-time basis.
The older the children get, especially when they start attending school, the less swayed the California Family Court judge is going to be regarding this particular factor.
Of course, children with special needs or handicaps are going to be treated very differently under this factor, because of the increased time required to attend to them.
California Family Code 4320 factor number eight: each spouse’s age and health.
If both spouses are healthy, the court will not look to make any special orders that lower or raise alimony or affect its duration.
However, if one of the spouses is in poor health, or is older and has a lesser ability to become gainfully employed within the workforce, the court can certainly take all of those factors into consideration.
A 40-year-old healthy spouse will be treated differently than a 68-year-old unhealthy spouse as a result of both age and physical capacity.
Health is not limited to physical abilities. Spouses who suffer from psychological conditions may also be impacted under this factor.
California Family Code 4320 factor number nine: documented evidence of any history of domestic violence between the spouses or perpetrated by either spouse against either spouse’s child, including emotional distress that has resulted from the domestic violence.
This is a self-explanatory. If there has been a history of domestic violence between the spouses that has been documented, the court must take it into consideration when evaluating alimony. As of January 1, 2014, California Family Code 4320 changed to include domestic violence by either spouse against any of the children as factor in this subsection.
Please read our article about the impact of a domestic violence finding on alimony.
For the courts to take domestic violence into consideration does not require that the perpetrator of domestic violence be convicted or even have a restraining order issued against him or her.
Courts do not like awarding alimony to perpetrators of domestic violence, regardless of the gender. The court has the discretion to lower the alimony to a perpetrator of domestic violence even if the victim of the alimony is the higher earner. Similarly, the court may make an upward adjustment of alimony or extend the duration of it for victims of domestic violence.
It is a shame the code doesn’t recognize a finding of false allegations of domestic violence in a divorce as a factor. It should be.
California Family Code 4320 factor number 10: the immediate and specific tax consequences to each spouse.
This is another self-explanatory factor whereby the court has the discretion to take into consideration what tax impact the alimony order will have. Alimony is generally deductible by the payor spouse and taxable to the payee spouse. That is the minimum tax consequence that exists in any alimony order.
California Family Code 4320 factor number 11: the balance of hardships to each party.
This factor gives the court discretion to look at hardships that may be caused to both the supported spouse as well as the supporting spouse by virtue of the alimony order. This is a catch-all factor that the Family Court can take into consideration when the previous 10 factors do not specifically address the hardship issue.
California Family Code 4320 factor number 12: the goal that the supported party be self-supporting within a reasonable time.
With the exception of marriages that are 10 years or more, the court will take into consideration the goal to become self-supporting for the supported spouse. While once again it is not a hard and fast rule, a reasonable period is generally considered to be one half the length of the marriage.
Do not assume that a marriage of 10 years or more does not have the same self-supporting goal. It does. It just is not as clearly spelled out within this Family Code factor.
Gavron Warning in California alimony cases
The court has the discretion to make a Gavron warning or admonishment to a supported spouse that advises the supported spouse that he or she should make reasonable efforts to assist in providing for his or her own needs. This warning puts the supported spouse on notice that he or she needs to become self-supporting within that reasonable period and the spouse who refuses to become self-supporting could face a termination of his or her alimony.
California Family Code 4320 factor number 13: the criminal conviction of an abusive spouse when the court is reducing or eliminating an alimony award under California Family Code 4325.
California Family Code 4325 states that there is a rebuttable presumption that when there has been a criminal conviction for domestic violence by one spouse against the other spouse within five years before or any time after the filing of the divorce petition, the Family Court should not make an alimony award to be a spouse who committed the abuse.
This presumption is rebuttable, which means it is not conclusive. The abusive spouse can rebut the presumption by several ways including showing that he or she was also a victim of domestic violence by the other spouse. Such an argument would essentially attempt to cancel out the “perpetrator v. victim” stigma and make it appear as if it was more mutual than one-sided.
California Family Code 4320 factor number 14: any other factors that the family court deems to be just and equitable.
Talk about broad! This gives the court a lot of discretion to take into consideration anything else that it believes is reasonably necessary when making an alimony award in California. These include but are not limited to:
1. The support of adult children
2. The support of others including grandparents, family or new relationships.
3. Disabilities of children that require a greater support.
Any other factor that the court believes would have an impact on ability to pay, need or the marital lifestyle of the parties.
Long term marriages and the court’s retention of its power to make orders for alimony in California
California Family Code 4336(a) through (c) states:
(a) Except on written agreement of the parties to the contrary or a court order terminating alimony, the court retains jurisdiction indefinitely in a proceeding for dissolution of marriage or for legal separation of the parties where the marriage is
of long duration.
(b) For the purpose of retaining jurisdiction, there is a presumption affecting the burden of producing evidence that a marriage of 10 years or more, from the date of marriage to the date of separation, is a marriage of long duration. However, the court may consider periods of separation during the marriage in determining whether the marriage is in fact of long duration. Nothing in this subdivision precludes a court from determining that a marriage of less than 10 years is a marriage of long duration.
(c) Nothing in this section limits the court’s discretion to terminate alimony in later proceedings on a showing of changed circumstances.
The code is clear enough on its face but what spouses sometimes miss is the section that speaks to the spouses’ power to agree to something different than the code allows.
A husband and wife are free to negotiate in a divorce settlement many variations of alimony terms and conditions. These include but are not limited to (a) the indefinite retention of the court’s power to make orders just as the code says, (b) termination of alimony on a set date which may or may not include, especially in a long-term marriage, (c) termination of the court’s power to ever award alimony beyond that date, (d) nonmodifiable alimony in various forms including non-modifiability for a certain period, the entire time as well as a step down or step up of alimony over time.
These numerous variations must be explicit in the alimony agreement and it is strongly recommended that you have a skilled divorce lawyer draft such agreements and do not try to come up with language on your own.
Alimony orders and agreements are highly litigated and disputed
Over the years, the issue of the court’s power regarding alimony and the interpretation of a husband and wife’s agreement and what they really intended versus what they really said has been the subject of a lot of litigation. Many times, this litigation was caused by careless drafting of alimony agreements or, even when the language appeared sufficient, the law’s evolution regarding interpretation of certain language.
Reduction of alimony in California
We wrote a comprehensive article about reducing alimony in California. Please check it out and we hope you enjoy it because it goes through the most common issues that come up in a reduction of alimony proceeding. We have also created a flow chart about reducing alimony in California that will help you visualize the process.
Termination of alimony in California
Termination of alimony is also a common request after a divorce judgment.
In short-term marriages, the termination of alimony is simple because the date is generally one half the duration of the marriage. The shorter the marriage, the more likely the one half duration will act as a termination. This is not a date that should be assumed and any alimony agreement should be explicit about what that date is and clear and specific language should be placed in the alimony agreement that states alimony shall terminate on that date.
In long-term marriages, the court will generally not terminate its power to award alimony. However, the court does have the power to order alimony to be set at zero after a certain duration of time, especially in marriages that are very close and just over the ten-year mark.
For example, in a 10 1/2 year marriage, the court could set alimony for half the duration of the marriage and then, at the halfway point, put alimony at zero unless the supported spouse comes into court before that date, seeks and has a hearing on continuation of alimony.
The court has discretion to create this language in a manner that forces the supported spouse to come in before it goes to zero and even have a final decision before it goes zero for the alimony to continue. A full discussion of these issues is an article, onto itself, and is beyond the scope of what we are writing here. We intend to address them in the near future, including the topic of “Richmond Orders” which are part of the mine field of law and procedure in alimony cases.
These can be minefields for the supported spouses and, if you are in a contested hearing, it is very important that you get clear language from the court as to what it intends to do.
If language is being drafted by you and your lawyers, it is equally important to make sure that the intent is specific so you’re not later at the mercy of the Family Court to determine what you and your ex-spouse intended.
The Family Court retains its power to terminate alimony in long-term marriages
Just because a marriage is of a long duration and even if it is much longer than the 10 year mark does not mean the court loses all power to terminate alimony.
The court retains its power and has the ability to terminate alimony in longer marriages if there is persuasive evidence that the supported spouse can sustain the marital lifestyle and standard living on his or her own.
Another way to understand this concept is that the court must clearly find that the supported spouse will be able to adequately meet his or her financial needs without the necessity of additional alimony from the other spouse.
This is not an easy burden.
Generally, a showing has to be made that the supported spouse has gained income, typically through employment, that allows him or her to provide for his or her needs. The nature and extent of the employment is a factor in the court’s consideration and is not limited to just the income.
In addition, depending on the amount of alimony, obtaining a separate estate may be grounds for termination of alimony even in a long-term marriage. This could include an inheritance as one common example.
The court would have to look at how and why that separate state would help the supported spouse meet his or her financial needs.
Termination of alimony typically does not occur simply because the supporting spouse has lost his or her employment or had a reduction in income. Generally, that results in a modification of alimony. However, if the income status and other Family Code 4320 factors show that the supporting spouse has had a significant change of circumstances downward in his or her income and the supported spouse has had a significant change circumstances upward, the court may rethink the entire alimony obligation going forward.
The Family Court has a lot of discretion when determining alimony in California
These issues are well within the discretion of the Family Court and there are no black and white rules that mandate the Court do one thing versus another. It all comes down to a balancing of the many factors the court will take into consideration including the supported spouse’s good faith efforts to become self-supporting or the failure to do so.
Retroactivity of alimony in California upon modification
Retroactivity of support in a modification proceeding typically goes back to the date of filing of the request to modify or terminate. However, when the modification of alimony request is made as a result of either spouse’s unemployment, the court must make the retroactive modification to the later of the date of service of the request for modification or the date of unemployment, unless the court finds good cause not to make the order retroactive and states on the record the reasons for that good cause.
This must be more than a conclusion but rather the factual reasons the court refused to make the order retroactive must be spelled out.
Retroactive orders of alimony could lead to reimbursements if the support is modified downward
A retroactive order may entitle the spouse paying support to be reimbursed for the excess amounts the supporting spouse paid during the retroactive period of time. For example, if the court lowers support from $5000 to $3000 and makes that order retroactive back three months, the court may order the supported spouse to reimburse the supporting spouse $6000 for the retroactive modification.
This repayment does not have to be paid all at once. The court has a lot of discretion here and can set it to be paid over time or even offset it toward future support payments.
Family law courts are not just a court of law but they are also a court of equity. Family law judges try not to make orders that become draconian in their nature and typically will be flexible with anything that involves a repayment by one spouse to the other especially when dealing with retroactive modifications.
An alimony modification can be made retroactively upward
It cuts both ways. If there is a retroactive modification, alimony can go up under certain circumstances we discuss later. If that happens, the supporting spouse could owe support, back in time, to the retroactive date.
Modification of alimony orders
To modify a California alimony order, the requesting spouse must show that there has been a material change of circumstances since the order was made.
The circumstances to which we refer are the same ones that Family Code 4320 lays out and which we discussed above.
Notice the use of the term “material”. It is not enough to simply show a change. The change has to be significant enough to justify a modification.
Rushing to court just because there has been slight adjustments in income upward or downward or slight adjustments in the standard living will generally cost you a lot of money in attorney fees, only to lose the modification proceeding. What is material or is not is best discussed by speaking to an experienced family law lawyer who has handled alimony modification proceedings.
The material change of circumstances must have occurred after the most recent alimony order
The material change of circumstances has to have occurred since the order that is being modified. In addition, the fact that a spouse can show that a change of circumstances has occurred does not guarantee that the spouse will obtain the modification. The court still has to look at the needs and ability to pay of each spouse as well as all of the Family Code 4320 factors.
The material change of circumstances must also not have been anticipated
The material change of circumstances should also not be something that was anticipated by the court order. For example, if the court alimony order was based on the supported spouse earning a certain sum of income and the support was adjusted in the order based on an imputation of that income, when the supported spouse gets a job and makes at or about that income, the supporting spouse would have a difficult time seeking a modification.
That is because the court order already imputed a certain sum of money to the supported spouse and the fact that he or she is now actually receiving that money through employment (as opposed to imputation) is not really a change that has occurred.
A careful reading of the order and an understanding of the circumstances that existed at the time it was entered, especially those that both of the spouses knew and recited in the order, should be carefully reviewed before any modification proceeding is filed.
Can a failure of a stated assumption be a material change of circumstances and justify a modification of a California alimony order?
A fascinating scenario is when there is a failure of an assumption that takes place upon which a alimony order was made.
The most interesting case on this point is one called Marriage of Jacobs.
In that case, there was a long-term support order and the support order was ultimately reduced to one dollar per year. But that reduction was based on the supported spouse’s psychiatric problems being alleviated by that time so that she could become reasonably self-supporting.
One California Court of Appeal held that the failure of that assumption occurring constituted a change of circumstances that justified the modification of the support order and for the support to continue.
What this case teaches is that a material change of circumstances does not always have to be a act or event but can be, under certain situations, the failure of an assumption to take place.
It would be unusual for a failure of an assumption to be grounds as a material change of circumstance unless it is actually spelled out in the court order.
One situation that this could occur may be to supported spouse’s failure to make good faith efforts to become self-supporting. Those cases are usually very factually rich and can cut both ways – whereby a supported spouse has failed to comply with the court order to make reasonable efforts to become self-supporting which could result in a reduction of support as well as a supported spouse’s good-faith efforts to become self-supporting but the failure to do so was beyond his or her reasonable control. The latter could result in an ongoing support order or a modification in favor of the supported spouse.
What happens if the supporting spouse has increased his or her income?
The question we sometimes get is what happens when the spouse paying support has received an increase in income? Can the other spouse seek an upward modification of support as a result?
The answer is yes but the situation is a unique one in that the court should have to find that the amount of the support in the order that is being modified was not adequate to meet the supported spouse’s reasonable needs pursuant to Family Code 4320 at the time the alimony order was made.
In other words, the court would have to find that the support order was less than what the spouse needed when taking the marital standard living into consideration.
This often happens when the supporting spouse did not make sufficient money post separation to meet the marital standard living when compared to his or her income during the marriage, the latter of which established the marital standard living.
If that cannot be shown, an increase in pay can still act as a material change of circumstances if it can be shown that the amount required to meet the supported spouse’s needs has increased since the court order due to a change of circumstances. This could include many things but the most common ones are a change in health, inflation and cost of living or other relevant circumstances beyond the supported spouse’s control.
The marital lifestyle is the benchmark for alimony in California
The reason these rules exist is that the marital lifestyle is the ultimate benchmark for the amount of support and which will dictate a ceiling of sorts for the support.
If the alimony order was consistent with Family Code 4320 and the marital standard of living, a supported spouse will generally not receive an increase in support just because the supporting spouse has an increase in pay. That is because the goal of Family Code 4320 is to maintain the marital standard living and not the post separation standard of living.
Does the income of a new spouse impact California alimony orders?
Another question that often comes up is whether the supporting spouse’s new spouse and his or her income can be considered. The short answer is no. The court cannot consider a new spouse or partner’s income in relation to the supporting spouse’s ability to pay or marital standard living.
What about cohabitation and its impact on California alimony?
California Family Code 4323 states:
(a) (1) Except as otherwise agreed to by the parties in writing, there is a rebuttable presumption, affecting the burden of proof, of decreased need for alimony if the supported party is cohabiting with a person of the opposite sex. Upon a determination
that circumstances have changed, the court may modify or terminate the alimony as provided for in Chapter 6 (commencing with Section 3650) of Part 1.
(2) Holding oneself out to be the husband or wife of the person with whom one is cohabiting is not necessary to constitute cohabitation as the term is used in this subdivision.
(b) The income of a supporting spouse’s subsequent spouse or nonmarital partner shall not be considered when determining or modifying alimony.
(c) Nothing in this section precludes later modification or termination of alimony on proof of change of circumstances.
It is interesting that the California legislature has still not amended Family Code section 4323 to include same-sex relationships with the changes that have taken place in California and the Defense of Marriage Act also being struck down by the Supreme Court. We expect that, soon, the California legislature will amend this statute to include same-sex partnership coupled with cohabitation short of marriage as a presumption of reduced need, just as it exists in heterosexual cohabitation.
Child support reduction or termination as grounds for an upward California alimony order
Determination of child support can also act as a material change of circumstance and as grounds to modify alimony upward.
Family Code section 4326 is an interesting statute on this issue. It states: “in a proceeding in which a spousal support order exists or in which the court has retained jurisdiction over a spousal support order, if a companion child support order is in effect, the termination of child support pursuant to subdivision (a) of Section 3901 constitutes a change of circumstances that may be the basis for a request by either party for modification of spousal support.”
The statute however has a time limit associated with it: “A motion to modify spousal support based on the change of circumstances described in subdivision (a) shall be filed by either party no later than six months from the date the child support order terminates.”
Family Code 4326 also states that if such a motion is filed, either spouse can request that a vocational evaluator be appointed.
The code carves out certain exceptions where the termination of child support does not act, by itself, as grounds for modification of spousal support:
- “The child and spousal support orders are the result of a marital settlement agreement or judgment and the marital settlement agreement or judgment contains a provision regarding what is to occur when the child support order terminates.”
- “The child and spousal support orders are the result of a marital settlement agreement or judgment, which provides that the spousal support order is nonmodifiable or that spousal support is waived and the court’s jurisdiction over spousal support has been terminated.”
- “The court’s jurisdiction over spousal support was previously terminated.”
However, Family Code 4326 is repealed (no longer in effect) unless, “a later enacted statute, that is enacted before January 1, 2014, deletes or extends that date.” It is currently unclear whether the statute will remain in effect. We will let you know as soon as we know.
Death or remarriage terminates alimony unless the spouses have come to a different agreement
It should go without saying that a alimony order terminates upon either spouse’s death or on the supported spouse’s remarriage. However, it is not that simple.
The spouses have the power to come to an agreement that extends alimony even if there is a remarriage. The agreement can even take alimony beyond death, such that it is paid to the estate. Such provisions must be stated clearly and unambiguously in the agreement. Otherwise, the agreement only invites disputes between the spouses in a later court proceeding, when the judge is left to figure out each spouse’s intention
Was this analysis of California alimony laws and procedure helpful to you?
No article can cover your specific factual situation and you should never rely on an article to access your needs and goals. However, we hope this alimony guide helped give you enough information to get a general understanding of how alimony works in California.
If you have taken the time to read it, then it is clear you care about your case and its results. It’s time you hire someone who cares as much. Our experienced and knowledgable California divorce lawyers are a phone call or email away and we look forward to helping you.
Would you like to learn more about California family law? We have up to date and new weekly articles in our family law articles page. In addition, two pages we think you will especially enjoy are:
1. Our detailed guide to California child custody laws, written to inform parents of their rights in an easy to read and understand format
2. A page dedicated to expectations in a divorce. This takes you through the different expectations in a divorce especially if you have children, support issues and assets.