No one gets married with the thought of the relationship ending one day. But with a divorce rate in higher than the national average of around 50 percent, California sees more than its fair share of marital dissolution. And while a clean, uncomplicated split may be the ideal scenario for everyone involved, it doesn’t always work out that way.
If one party is seeking alimony, known as spousal support in California, then you will likely go before a judge to work out the details. A variety of different factors must be considered before spousal support payments are determined, and it’s always in the best interest of both parties to retain an experienced alimony / spousal support attorney for guidance.
Whether you have been ordered to pay alimony to your former spouse, or you are seeking spousal support payments moving forward, the complexity of the law makes it challenging to navigate alone. When you enlist the help of our San Jose divorce attorney, you can look forward to a smooth process, a fair outcome and peace of mind knowing we have your best interests at heart.
San Jose Alimony Attorney Quick Links
- What Is Alimony/Spousal Support?
- Family Code Section 4320/Spousal Support Orders
- How Long Does A Spousal Support Order Last?
- Alimony and Tax Information
- What Is a Gavron Warning?
- What Are Richmond Orders?
- Do You Need A San Jose Spousal Support Lawyer?
- Choosing The Correct Alimony Lawyer
What Is Alimony/Spousal Support?
Alimony, also referred to as spousal support, spousal maintenance and partner support (in domestic partnerships), is a court-ordered payment awarded to one spouse to allow him or her to maintain the same standard of living he or she enjoyed during the marriage.
A higher-earning spouse may have to pay a lower-earning spouse alimony after a divorce if he or she financially supported the spouse during their marriage. Alimony is especially common if one spouse gave up a career or education to care for the family during the marriage.
What is Considered When Determining Spousal Support in San Jose?
When determining whether alimony should be ordered and deciding on an amount, the court will take several factors into consideration. It can be a comprehensive process, with an exhaustive analysis of all relevant information.
Some of the factors that the court will take into consideration include:
- Duration of the marriage
- The standard of living the couple had during the marriage
- The age and health status of each spouse
- Income and expenses of each spouse
- Any properties that are owned or shared by the couple
- Earning potential for each spouse; including marketable skills and job training or education required
- History of domestic violence, if any
- Tax liabilities for each spouse
- Any assets owned separately
- The ability of each spouse to support themselves
- How the custodial parent’s job affects minor children
Calculating spousal support in California typically requires assistance from a family law attorney. Calculators you find online are inaccurate, as this is a complex matter that depends on the facts of your particular case. A lawyer can estimate how much you or your ex may have to pay in alimony after an in-depth analysis of your specific situation.
California Family Code Section 4320 and Spousal Support Orders
During a divorce case in San Jose, a judge has discretion over whether to order spousal support. However, judges are required to base their decisions on the stipulations of California Family Code Section 4320. This statute lists many different factors that a judge should take into consideration when deciding if an individual qualifies for alimony. These factors include:
- The earning capacity of each party and whether it is sufficient to maintain the standard of living established during the marriage.
- Whether one spouse’s capacity to earn was negatively impacted by time spent on domestic duties.
- The extent to which one spouse contributed to the career or education of the other.
- The financial ability of the higher-earning spouse to pay spousal support.
- Each spouse’s financial obligations and assets.
- Whether the supported party could get a job without causing detriment to dependent children in his or her care.
- How long the marriage lasted.
- Each spouse’s age and health.
- Any history of domestic violence, if applicable.
- Hardships on each party.
- Any other factors the judge deems relevant.
Section 4320 of the law also states that the goal of a spouse who receives spousal support should be to become self-supporting within a reasonable period of time. A reasonable period of time is typically half the length of the marriage if the couple has been married for less than 10 years. However, a judge has discretion in how long a spousal support order will last based on the circumstances.
How Long Does a Spousal Support Order Last?
There is not only one answer to this question; the length of time an alimony/spousal support order will last depends on the judge’s discretion. The main factor a judge looks at when deciding how long a spousal support order will last is the length of the marriage.
If a couple is ending a long-term marriage (typically 10 years or longer), a judge may continue a spousal support order indefinitely. Conversely, if it is a marriage of short duration, (typically 8 years or less) support will be ordered for half the length of the marriage. Certain events may end an order early such as the recipient remarrying.
Temporary vs. Permanent Alimony
In California, there are temporary and permanent spousal support orders. These terms refer to when the orders are active rather than how long they will last. Temporary alimony is a short-term order that is active only during divorce proceedings. One spouse may qualify for temporary alimony if he or she cannot afford living expenses during a divorce, such as after separation.
Temporary alimony may either end after a divorce is finalized or turn into permanent alimony. Permanent alimony, rather than lasting indefinitely, refers to an alimony order that becomes active after a judge issues a divorce decree. Although permanent alimony may mean a spouse has to pay for life, most permanent alimony awards last a certain number of years and end.
Once Spousal Support Has Been Ordered
Once an alimony judgment has been ordered, modifications are not easy to make. The amount of spousal support that must be paid and the duration of payments can only be adjusted if a change in circumstances can be shown to the court.
This may include the party that is receiving payments remarrying, an event that renders the spouse making payments unable to continue, or the death of either party. In some cases, the parties may agree that the spousal support order cannot be modified or terminated regardless of the circumstances.
Alimony and Taxes
Alimony/spousal support orders come with tax implications. If you received your spousal support order after December 31, 2018, the Tax Cuts and Jobs Act states that the person paying alimony cannot list this payment as a deduction for federal tax purposes nor does the recipient pay taxes on the support received. For Orders entered prior to January 1, 2019, the paying spouse can deduct this payment on federal income tax forms and the recipient must declare it as income.
California tax law, however, states otherwise. For state tax purposes, the person paying spousal maintenance can continue to deduct this payment, while the recipient can list it as income. An attorney can help you with the tax implications of your case.
What Is a Gavron Warning?
The vast majority of alimony orders do not last forever. In the State of California, spousal support awards are granted under the expectation that the recipient will get the education or training necessary to become financially independent, at which point the alimony payments will stop. If your divorce or legal separation results in a spousal support award, the supported party must make a good-faith attempt to become self-supporting within a reasonable amount of time.
A Gavron Warning is when a judge notifies the recipient of a spousal support award that he or she must make reasonable efforts to become self-sufficient. California Family Code Section 4330 states that a Gavron Warning is a tool that a judge can use at his or her discretion to warn the recipient of spousal support that he or she needs to make an effort to become financially independent. While the attorney of the supporting party may request a judge to issue a Gavron Warning, it is ultimately at a judge’s discretion.
If an individual ignores a Gavron Warning, he or she could have income imputed to him or her. This means that the courts will assign an amount as the recipient’s “income” based on what he or she reasonably should be able to make based on the individual’s education, skill and work history. Imputed income could affect the individual’s ability to continue receiving spousal support.
What Are Richmond Orders?
A spousal support order in California may also involve Richmond Orders, also known as termination or step-downs. A Richmond Order can end an individual’s spousal support obligation and terminate the trial court’s jurisdiction to award spousal support after the termination date has passed. These orders can be based on evidence from a vocational examination that reports that the supported party is capable of becoming self-supporting by a certain date.
In essence, a Richmond Order assigns a date by which the recipient must become financially independent, as the spousal support order will be terminated on this date. It places the burden of proof on the supported spouse to demonstrate why he or she did not meet the expectations that the trial judge placed on the recipient when making the spousal support order. In other words, the recipient must provide evidence as to why spousal support should continue after the original termination date has passed if he or she still has not become financially independent.
Do You Need a San Jose Alimony/Spousal Support Lawyer?
A San Jose alimony attorney can help you complete and file the paperwork needed to officially request spousal support in California. Your lawyer can help you with a temporary and/or permanent alimony request. A lawyer will have the knowledge and resources to accurately estimate the value of your alimony claim.
Using this information, your attorney can represent you during settlement negotiations with your ex or a divorce trial in San Jose to argue for a fair outcome. While your lawyer handles complicated legal matters on your behalf, you can focus on your future and your family.
Choosing an Experienced San Jose Alimony Lawyer
In most cases, all both parties want is a fair judgment. However, given the nature and complexity of the process, it’s always wise to enlist the help of a proven alimony lawyer before you begin. At the Schoenberg Family Law Group, P.C., we have over three decades of experience helping people just like you in the San Jose area.
Whether you are paying spousal support or receiving it, we will work diligently on your behalf to get a fair settlement. We also offer assistance to clients that want to modify their current alimony order. Contact us today online or call (669) 230-1304 in San Jose for a consultation with one of our alimony / spousal support lawyers.