Just when you think you’ve reached the end of a separation agreement, a divorce can add another stumbling block before the process is complete.
It’s easy to think of divorce as merely a separation, division of assets, and assignment of custody responsibilities. Yet, these activities only form part of the overall process. One area that receives less attention but often causes significant stress is the topic of spousal support, otherwise known as alimony.
Alimony involves monetary payments from one party to another. Ultimately, these payments are transferred from one party to another to ensure both leave the marriage arrangement on equal footing, even though it may seem unfair or biased against the supporting party.
Determining if you are eligible and whether alimony will be ordered involves greater familiarity with your rights and obligations when it comes to spousal support. Thankfully, the guiding principles are very clearly outlined in the California Family Code section 4320.
One of the matters that will be decided by the judge as a divorce wind their way through court is spousal support. There are two kinds of orders granted by a judge: temporary and permanent support.
Alimony is a form of permanent support calculated following the division of debts and assets. The court may make the final decision, but figuring out your alimony responsibilities takes into account 14 variables, including the following:
Each county in the state establishes its guidelines for calculating the total monthly support. For example, the “Alameda Guidelines” formula calculates spousal support as 40% of the supporting spouse’s net income (after taxes and child support) minus half of the supported spouse’s monthly income. Because each county uses different guidelines to determine support, it’s always wise to gather more details from the top divorce lawyers to ensure you are familiar with the relevant calculations.
As mentioned earlier, there are two forms of support. Temporary support (also known as Pendente Lite) protects each party’s standard of living until a permanent arrangement is reached. Few guidelines govern the duration and expiration of this support. However, once the divorce is finalized, temporary support is replaced by permanent support, which is determined by the judge.
The length of permanent support varies, but the guiding criteria are generally straightforward and clear, like the marriage’s length. For a marriage lasting less than ten years, support typically lasts half the duration, after which the receiving spouse is expected to be self-sufficient.
For example, in a 6-year marriage that ends in divorce, the appropriate length of support will last three years. However, for marriages lasting longer than then years, spouses who earn less will be supported indefinitely. There are several exceptions to this discussed in further detail below.
Spousal support filings can be handled when a family court case is already open or result from three different case areas filed in court:
Once a case is open, the filing process can begin.
Ordinarily, this filing is handled by divorce lawyers unless both parties have already agreed to spousal support terms in writing. The other exception is when one party is filing for an adjustment without assistance from a legal professional. Still, to protect your interests to the fullest extent possible and ensure a carefully managed process, a good divorce lawyer is always recommended.
After reviewing all the criteria listed above and evaluating each party’s circumstances, a judge will produce a court order that establishes the alimony payments along with the duration (depending on the length of the marriage).
There is no automatic expiration of these support orders. Still, if you are responsible for paying alimony, there are situations where these obligations can be adjusted. On the other hand, if you’re receiving alimony payments, certain circumstances can impact continued support eligibility.
The process for changing or ending support involves obtaining a new court order. The eligible reasons for pursuing a court order include the following:
For example, many people have experienced financial deterioration and hardship due to COVID-19. This is a justifiable reason for adjusting spousal support. Emergency Rule 13 states that even if an individual seeking relief cannot file documents due to a court closure, the case to revise support can proceed if the proper steps are followed.
If both parties agree to the changes, they can write up the adjustments and have a judge approve the adjustments by issuing a new court order. However, if the parties cannot agree, the party seeking to adjust the agreement must file a motion with the judge to modify the support.
Still, the help of a family law attorney is suggested simply to ensure the process goes smoothly doesn't result in any unforeseen outcomes.
The process to adjust or end support can absolutely be filed by one party individually without legal representation. A quick overview of the steps are highlighted below:
1) Fill out the appropriate forms for the court including required requests, income declarations, expense assessments, and other attachments.
2) Have the court's family law facilitator review all the filings and paperwork to ensure its been completed properly.
3) Make two additional copies of all the forms that have been filled.
4) Submit the originals of the documentation along with the copies to the court clerk. There may be a filing fee involved depending on the court, after which the copies will be marked "filed".
5) Establish the court date for the proceedings to commence.
6) Have the papers served to the former spouse or partner by a third-party or by mail (it cannot be done by yourself under any circumstances). Be sure to check the legality of serving documents by mail with the family court facilitator given this activity is not permitted in all cases.
7) Each party must file proof of service with the court to ensure that the paperwork was duly sent and received by both parties.
8) Prepare for court and show up at the appointed date and time.
It's true, as mentioned above, you don’t necessarily need to hire a lawyer to ink a spousal support agreement or file an adjustment. If the divorce is uncontested and amicable, and the parties agree to forgo legal services, then, by all means, go for it. However, don't be quick to dismiss the help of a top divorce lawyer, especially in terms of negotiating and making sure your rights and obligations are respectfully considered in any final court order.
The reasons why a divorce attorney can be helpful in these proceedings are numerous. For one, each county in California has its own set of guidelines and criteria for establishing the calculations, as mentioned above in relation to the "Alameda Guideline." There is also the "Santa Clara Guideline" for example. Attorneys that are active in these types of cases are much more familiar with the ins and outs of each particular jurisdiction, which ultimately helps you navigate the process with greater ease and
Divorce cases and alimony can also pit both parties against one another, so it's helpful to have the support of a trusted advisor throughout the process. Moreover, we cannot overstate the value of having someone in your corner fighting for your rights on the legal battleground.
While finalizing a separation is already a stressful undertaking, spousal support can throw another wrench into the process.
California law goes a long way towards establishing the criteria for calculating alimony payments, making it easier for both parties to understand their rights and obligations. Still, the eventual spousal support number ultimately comes down to a judge’s court order.
When working towards an optimal alimony outcome, a professional divorce attorney consultation can help guide you through the separation process while giving you greater peace of mind and comfort during a challenging situation.
Images: Kelly Sikkema