Most people are confused and misinformed about how the California courts calculate spousal support. Spousal support (alimony) is payment from one spouse to another paid during or after a divorce and is based largely on need, ability to pay and the marital standard of living. Below are some of the biggest myths about Spousal Support:

Myth #1: Spousal Support is ordered for one-half the length of the marriage.

Many people believe that if spouses were married, for example, for ten years then spousal support is automatically ordered to be paid for half the length of the marriage, or five years. There is no California law which provides that spousal support must be paid for half the length of the marriage. While this can serve as a rough guideline, the court takes many other factors into consideration and this guideline should not be relied upon.

Myth #2: Infidelity of a spouse will be taken into considertion by the court when determining spousal support.

California is a no fault divorce state. Therefore, infidelity by a spouse will have no relevancy in a divorce proceeding and will not affect the amount or duration of spousal support ordered by the court.

Myth #3: Once spousal support is ordered it cannot be changed or modified.

Spousal support can always be modified (unless the spouses agree that it will be non-modifiable). Some events which may trigger a modifcation of spousal support are the payor’s loss of a job, a significant change in the custodial timeshare (amount of time allowed with children) or possibly a substantial inheritance received by the payee.

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Whether the issue of fault will play a part in your alimony award depends solely upon the laws of your state.

Many people assume that a “no-fault” divorce also means that fault will not be a factor in deciding alimony however, this is not always the case. While some no-fault states do apply the “blameless” process to alimony proceedings in addition to the divorce itself, other no-fault states will in fact, consider misconduct when determining alimony, even if the divorce was based upon a mutual “no-fault” agreement between the spouses.

The same is true of states offering at-fault grounds. Some may consider misconduct during alimony decisions while others will not, regardless of the misconduct in question.

Typically, most states also rely on other factors as well, such as current incomes of the parties, the ability to sustain your current standard of living, future earning potential, current expenses such as college tuition for a full-time student or a mortgage payment and of course, any previous arrangements that may have been made in a pre-nuptial agreement.

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Alimony doesn’t always mean a lifetime of monthly payments. In fact, there are a number different types of spousal support to an ex.

Temporary Alimony

Temporary alimony is spousal support that is paid during a separation but before the divorce becomes final. This type of alimony may ultimately be continued after the divorce but not necessarily. In some cases, the alimony stops altogether when the divorce becomes final.

Rehabilitative Alimony

This type of alimony represents payments made from one spouse to another to allow the lesser-earning spouse to acquire the necessary training or education needed to become self-supporting.

Rehabilitative alimony is temporary in nature as it assumes that, once the rehabilitative process is complete, the spousal support will no longer be needed. Common instances where this would be appropriate include providing a newly single mother with young children additional support until she is able to go back to work or perhaps when one party lacks the skills necessary to earn an acceptable living. Oftentimes, rehabilitative alimony is paid to a spouse who left the workplace to raise children and will need some time to re-educate and re-orient herself to work outside the home again.

Divorce decrees that stipulate rehabilitative support will normally include a time frame for the alimony to be paid after which the spousal support is subject to review by the court. If the support is subject to review, the parties will meet again to determine if the support should continue for another fixed period of time or if changes should be made.

Reimbursement Alimony

This type of spousal support is designed to reimburse for an expense incurred by the other spouse during the marriage. The most common example of this would be to order one spouse to pay reimbursement alimony to his or her ex for providing financial support for the family while the spouse attended college or trade school.

In these instances, the paying spouse has typically advanced his or her career and usually with the understanding that both parties would benefit together from this investment as a couple. But when the parties divorce soon after the training is complete, the benefits are no longer shared between the couple but become exclusive to the party who received the education. Reimbursement alimony then can provide some relief to the spouse left behind.

Permanent Alimony

Permanent alimony is the simplest type of spousal support, providing fixed monthly payments from one spouse to another for the life of the spouse with a few provisions. Typically, permanent alimony ends when either spouse dies or when the receiving spouse remarries. If the receiving spouse were to come into a large amount of money, alleviating the need for alimony, that could also be cause to have the alimony order lifted or at least reduced.

In addition, permanent alimony can usually be modified under certain circumstances such as a change in income for either spouse or an illness or unforeseen emergency. The adjustment can be permanent or temporary and can go up or down, depending upon the circumstances fueling the modification, depending on specific state law and depending on the terms of the divorce decree.

Lump-Sum Alimony

Instead of monthly payments, the parties can agree (or the court can order) one party to pay a lump-sum amount to the other.

In this instance, the spousal support is in the form of a one-time payment and is often done instead of an adjustment in the property settlement. Lump-sum alimony can also present some tax advantages and is usually paid regardless of whether or not the receiving spouse remarries or satisfies some other type of exception that would normally end a spousal support order.

Property Distribution

In lieu of cash, spousal support can be paid through the property distribution process. This is basically the equivalent of a lump-sum payment since the property is divided during the divorce and the receiving spouse takes ownership of the property at that point.

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Alimony 101

Alimony (also known as spousal support) is an amount paid by one spouse to another after a divorce to allow the lower-income spouse to continue meeting certain living expenses. Unlike child support, alimony isn’t guaranteed and the amount is at the discretion of the judge.

Using a prenuptial agreement, you and your spouse can outline alimony payments or waive them altogether (although, a few states don’t recognize the waiver and many others scrutinize it closely before declaring it to be valid).

A Good Idea

Despite popular opinion, alimony can be a good thing. It is tax deductible and is considered income to the receiving party. That means that if one party has a considerably larger income than the other, it could be considered a tax advantage to both parties to allocate alimony.

When you create an alimony provision in a prenuptial agreement, you prevent the court from awarding it anyway and setting its own amount.

Things You Need to Know

To qualify, alimony must be paid in cash – no property or debt assumption “trade-off” – and should generally be paid in similar amounts each year. Alimony that is paid heavily the first two years and then tapers off thereafter is often considered to be “front-loaded” and can result in the paying spouse having to reclaim the funds and pay taxes on the amount. This “excess alimony” rule was designed to prevent spouses from declaring property settlements as alimony and reaping the tax benefits it produced.

Alimony is considered to be separate from child support and cannot be affected by anything to do with the children. Remember that alimony is awarded as spousal support and can’t be stopped or reduced because a child got married , died or moved away from home.

Funds paid to a spouse can only be considered alimony if they were paid after a divorce decree or other legal agreement. You must be living in separate households and filing separate tax returns for the funds to be considered tax deductible.

Alimony can continue for any amount of time – fixed or unlimited. It can also be subject to certain conditions, such as the recipient spouse remarrying or a certain increase in income that outweighs the amount of the support. Alimony always ends when the recipient spouse dies.

How much should be paid?

Only you and your spouse know your particular situation, which is why outlining alimony support in a prenuptial agreement may make good sense.

Approaches to determining the amount of alimony differ from state to state. Some states balance the reasonable needs of the recipient spouse to the paying spouse’s ability to pay. Other states use a guideline equation. For example, the courts might use up to 40% of the paying spouse’s net income (after child support) and then subtract half of the recipient spouse’s net income. The exact amount is calculated by considering the income of the two spouses, the number of years the parties were married and/or the potential increase in income after the agreement is made.

In the event that one spouse makes considerably more than the other, the courts may rule a waiver of alimony as “unconscionable”, meaning that no sensible person would have agreed to such as waiver unless coerced or under serious stressful conditions.

If you and your spouse want more control over alimony in the event of a divorce, a prenuptial agreement is the best way to go.

Related posts:

1. Tax Treatment Of Child Support And Alimony
2. Prenuptial Agreements and the Amount of Support
3. 3 Biggest Myths About Spousal Support in California