California judges have significant discretion in spousal support awards
They are required to consider all just and equitable factors.
Some states have recently enacted laws that reform some provisions of their spousal support statutes. For the most part, those changes tend to reign in judicial discretion when crafting alimony awards. For example, some states have limited the ability to order lifelong payments.
While California places some restrictions on judges, for the most part they are quite free to consider the circumstances of divorcing couples and craft appropriate awards.
Of course, the parties can negotiate the terms of their divorce, including alimony, instead of having the judge decide the issues. If the issue does go before the judge, he or she can order temporary alimony during the time the divorce is pending, if appropriate.
Judicial decision making
As part of the final divorce order, the judge can order spousal support going forward from that date, called permanent or long-term alimony, as opposed to temporary. California law requires the court to weigh a long list of factors in deciding whether to order spousal support and its amount and duration:
- Each party’s earning capacity and whether it will allow each of them to continue their marital standard of living, considering the supported or receiving spouse’s marketable skills and the market for those skills; the time and cost for him or her to get education or training to improve those skills; the need for retraining or education to get new skills that are more marketable or to get employment; impairment of the supported person’s earning capacity by unemployment during the marriage to “devote time to domestic duties”
- Contribution by the supported person to the paying spouse’s career
- Ability of supporting party to pay alimony, considering earning capacity, income, assets and living standard
- Each of their needs considering the marital standard of living
- Length of marriage
- Each of their debts and assets
- Supported person’s ability to work without “unduly interfering” with the “interests” of minor children in his or her custody
- Each of their age and health
- Domestic violence
- Tax ramifications
- The parties’ relative hardships
- A goal for the supported spouse to support him or herself in a reasonable time, generally defined as half the length of the marriage if it lasted less than 10 years, but the judge has discretion to order any duration
- Certain domestic violence or “violent sexual felony” convictions (as well as attempted murder or solicitation of murder of the other spouse) of the potential recipient of alimony will make it impossible or difficult to get an alimony order
- Anything else the judge feels is “just and equitable”
In addition, if the proposed recipient is cohabitating with another partner, there is a rebuttable presumption that the spouse has a “decreased need” for alimony.
Duration issues
The court may “advise” the recipient that he or she should take reasonable steps to help support him or herself, unless in a marriage of at least 10 years the judge finds this “inadvisable.”
If the award is of a limited duration, unless the order says differently the court cannot later extend it. However, if the marriage is of long duration (at least 10 years), unless there is an agreement or a court order to the contrary, the court’s power to adjust the award later is retained “indefinitely.”
Normally, the court can order that alimony stop if a party proves “changed circumstances,” including the recipient’s cohabitation with another person, if appropriate. Also, unless there is an agreement otherwise, a spousal support obligation ends if either party dies or the recipient remarries.
An individual should get legal advice if facing alimony issues.