What is Alimony?
Alimony is a form of monetary support ordered by a court as part of the divorce. It is also referred to as spousal support in California. In addition to divorce, alimony is awarded in domestic violence restraining orders cases and child support agency cases. Not every divorce, restraining order, and child support case has alimony payments involved. However, if the separating spouses cannot come to an agreement or one party will be left at a significant disadvantage compared to the other, the court may order temporary, rehabilitative, or permanent spousal support or alimony. The amount to be paid and the longevity of payments is decided by the family, employment, asset, and debt factors. All types of alimony end when the supported spouse remarries when the supported spouse enters a domestic partnership, or when either spouse dies. Below, the different variations of alimony are described further:
Temporary Alimony
Temporary alimony is meant to support the lower-income spouse during the divorce proceedings. Alimony ends when the judge finalizes the divorce proceedings, or it ends when permanent or rehabilitative spousal support is awarded.
Rehabilitative Alimony
Rehabilitative alimony is awarded in order for the lower-income spouse to develop valuable working skills or to obtain an education. This type of spousal support ends when the supported spouse has learned the skills and training required to enter the workforce. This is more likely to be awarded when one spouse is domestic and the other is employed full-time.
Permanent Alimony
Permanent alimony is awarded to maintain the other supported spouse’s status of living at the “marital standard of living.” This type of spousal support only ends when one spouse dies or if one party files to reconsider the alimony amount due to a material change in circumstance.
How is Alimony Calculated?
Alimony is calculated in one of three ways in the state of California. The first is only for temporary alimony. In the case of temporary alimony, the court will usually use a formula used for child support instead of traditional alimony spousal support factors. The second method is used for both rehabilitative and permanent alimony. For these two types of spousal support, the judge will determine alimony payments by considering a list of factors and their own discretion. These factors include(2):
- How much each spouse earns
- The education level of each spouse
- If and how much each spouse contributed to education costs
- The payee’s ability to pay alimony based on income, work, education, debt, assets
- The cost of living for each spouse
- How long the marriage lasted
- The ability of each spouse to be employed without interfering too much with the children
- The age and health of each spouse
- Domestic violence, child abuse history, criminal history
- Taxes each spouse will have to pay
- The length of time it will take the supported spouse to become self-sufficient
- Other factors the court deems relevant through its own discretion (CA Family Code §4320.).
If the spouses would rather decide without the help of a judge, they may form a contract that both agree on. In this case, the spouses would decide the amount to be awarded and the length of the alimony arrangement. This would then have to be signed and filed by the court.
How to File for Alimony
Alimony arrangements are filed in slightly different ways depending on whether the spouses have already made an agreement or if the judge must make the final decision. In both of these situations, the spouses will be required to make an appearance at the court. A walkthrough is listed below as well as here:
Pre-arranged Alimony (Settled by the Spouses)
- Inform yourself about your rights and responsibilities about spousal or partner support
- The Spousal or Partner Support Declaration Attachment (Form FL-157) is also helpful in deciding your spousal support by outlining the court process and factors involved.
- Decide on an amount, the duration of support, and how the support payments will be made (wage garnishment or direct payments).
- Consider other issues such as asset division, debt division, child support, and child custody and visitation rights.
Write up an agreement. - The Spousal, Partner, or Family Support Order Attachment (Form FL-343) details that will help you while writing up your agreement.
- Sign your agreement and write the case number for your legal divorce or separation on the form.
- Turn the agreement into the clerk for a judge to sign
- If paying by wage garnishment, turn in an Earnings Assignment Order for Spousal or Partner Support (Form FL-435).
- File the agreement and any other forms you turned in with the court clerk after the judge signs it and you have made copies. The clerk will keep the originals and stamp the copies as filed.
- If paying through wage garnishment, send a copy of the filed Earnings Assignment Order for Spousal or Partner Support (Form FL-435)
Court Ordered Alimony (Settled by a Judge)
- Fill out your court forms
- Request for Order (Form FL-300).
- Income and Expense Declaration (Form FL-150 ).
- Have your forms reviewed by a family court facilitator or an attorney who will help to ensure your forms are filed correctly
- Make at least 2 copies of the forms
- One copy will be for you; another copy will be for your spouse or partner. The original is for the court.
- File your forms with the court clerk and receive your court date
- Turn in your forms to the court clerk. He or she will keep the original and return the copies to you, stamped “Filed.” You will have to pay
- a filing fee. If you cannot afford the fee, you can ask for a fee waiver.
- Serve your papers to your spouse or domestic partner
- Serve your spouse with a copy of the papers, a Responsive Declaration to Request for Order (Form FL-320), and an Income and
- Expense Declaration (Form FL-150).
- These papers cannot be served by the spouse. They must be served by someone else.
- Check with the court clerk or family law facilitator to see when the papers must be served and if they must be served in person. If line 7 in the “Court Order” section on your Request for Order is checked, the papers must be served within 16 court days and only in person.
- If it is left unchecked but other items in the “Court Order” section are checked, one may still need to serve the papers to the other person.
- No checkmarks in the section mean serving by mail is likely allowed. In this case, one must send the papers 16 days before the hearing plus 5 mailing days.
- File your proof of service
- Whoever serves the papers must fill out a Proof of Service (Form FL-330PDF ) and give this to the filing spouse. This is then filed with the court by the spouse.
- If served by mail, this form must be filed by the server. Proof of Service by Mail (Form FL-335).
- Attend the court hearing with copies of all of the relevant documents including the Proof of Service, income and expense reports, and anything else that could help the judge figure the earnings and expenses for both spouses.
Can I be Released from Alimony Early?
One can be released from alimony or have their alimony arrangement reconsidered by filing an appeal. This appeal will be filed with the court as before, and it can be filed by either spouse. The goal of this appeal will be to modify or terminate the alimony agreement. This only occurs when a material change of circumstance arises or if the supported spouse is not making a good faith effort to become self-supporting. Additionally, alimony ends when either spouse dies.
Late or Behind on Alimony?
If one falls behind on alimony payments, there are a few things that could occur. First, since the court does not handle the transfer of payments between spouses, the supported spouse will have to file for enforcement of the payments. If found to be withholding funds that could be used for the payments, the payee could be liable for contempt of court. If the spouse is receiving child support as well, they should contact the local child support agency. The local child support agency will be able to help with the filing for the enforcement of payments (4). The other option the court and supported spouse can pursue is wage garnishment. In this case, the paying spouse would have the payments deducted directly from their payroll by their employer.
Alimony and Filing Taxes
Filing taxes for alimony is different between the state and federal levels. The state of California allows the paying spouse to claim payments as a tax credit on state taxes. State taxes also require the supported spouse to claim the payments received as income. If the divorce was settled by the court before December 31, 2018, taxes can be filed in the same manner as state taxes. If the divorce was finalized after December 31, 2018, Neither spouse claims the credit. The payments do not count towards tax credit nor income.
Contact Pride Legal
If you or a loved one has been paying alimony payments, we invite you to contact us at Pride Legal for legal counseling or any further questions. To protect your rights, hire someone who understands them.