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National alimony reform has not changed California's law yet

In our law practice, we regularly represent spouses who are divorcing and facing questions of spousal support or alimony, both those spouses who are potential recipients and those who are more likely to pay support. While some other states have recently enacted major reforms to conventional alimony laws, California is still in many ways fairly traditional in how it instructs judges to determine spousal support awards.

Alimony by agreement

Spousal support can be decided by the divorcing spouses themselves through negotiation, usually as part of a larger settlement agreement in the divorce. Negotiation is normally done through the spouses' respective lawyers or sometimes through an alternative dispute resolution method like mediation.

In an agreement, the parties are free to set their own terms, which are submitted to the court with a request to approve the agreement and incorporate its provisions into the final divorce order.

Another way alimony could be determined by the parties themselves is if they included agreed-upon terms in an earlier valid prenuptial or postnuptial agreement.

Spousal support award crafted by a California judge

If the spouses do not negotiate an agreement on alimony, the judge will decide the issue in the divorce proceeding. California statutes provide specific direction to courts about how to craft spousal support orders.

First, the award is to be just and reasonable considering the marital standard of living and the judge can order that the recipient spouse make reasonable efforts to support him or herself in certain circumstances.

To determine the amount and duration of alimony, the judge is to consider every factor in a long list:

  • Ability of each spouse to maintain the marital standard of living considering their earning capacities, including the supported party's marketable skills and the market for them, time and expense of getting education or training to develop those skills, need to retrain for different skills or employment, and impairment of that person's earning capacity because of unemployment during the marriage for "domestic duties"
  • Supported party's contributions to career of the other
  • Supporting party's ability to pay
  • Each of their needs based on the marital standard of living
  • Each of their assets and obligations
  • Marriage length
  • Negative impact of the supported party working on the interests of children in his or her custody
  • Each party's age and health
  • Domestic violence
  • Tax ramifications
  • "Balance of the hardships" to each
  • Goal of self-support within a reasonable time for the supported party
  • Criminal conviction of an abusive spouse
  • Anything else just and equitable

Regarding the goal of self-support for the supported spouse, the law provides that for any marriage not of "long duration," a reasonable time to become self-supporting (when alimony should end) is generally half the length of the marriage, but the judge has discretion to order longer or lesser duration of support considering the listed factors and the circumstances.

The law also gives the judge some leeway in determining whether a marriage is of "long duration." Specifically, a marriage is of long duration if it lasted at least 10 years from date of marriage through the date of separation, but the judge may consider periods of separation in that calculation. He or she may also find a marriage of less than 10 years to be of long duration.

An order of alimony may be modified or terminated if circumstances change or the supported spouse cohabitates, and does terminate if either party dies or the recipient remarries. However, the court may order that support continue beyond the death of the paying spouse by annuity, life insurance or creation of a trust.

California spousal support is incredibly complex and varies from marriage to marriage, so an attorney should be consulted to understand how the law is likely to apply in a given circumstance.

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