CONTENTS OF THE CALIFORNIA DIVORCE COURSE (FULL EDITION)

HOW DO WE FIGURE OUT WHAT THE ALIMONY SHOULD BE IN DOLLARS AND CENTS?

WHAT IF I DON'T WANT ALIMONY TO BEGIN WITH, BUT FIND OUT I NEED IT LATER?

CAN I STAY ON MY SPOUSE'S HEALTH INSURANCE AS PART OF THE ALIMONY?

IF MY SPOUSE STARTS LIVING WITH SOMEONE ELSE AFTER THE DIVORCE, DOES THE SUPPORT GO ON?

WHAT DOES SPOUSAL ABUSE HAVE TO DO WITH ALIMONY?

A CLOSER LOOK AT ALIMONY

Is the Pope Catholic? You bet it does. California's even famous for some of the insane alimony awards that have been issued. Keep in mind, though, that those are just a few of the worst, and they usually involve millionaires, not us common folk. You're not necessarily going to get stuck on the alimony issue in a California divorce.

Theoretically, that could happen. It's not likely, though. The general rule in California is that the longer the marriage, the more likely you are to pay alimony. In marriages of less than ten years, the Judge can apply the half-span rule. That is, alimony is normally ordered for half of the period of the marriage. If you've been married for ten years, you may be ordered to pay alimony for five. If you've been married for 5 years, you may be ordered to pay it for two and one half, and so on.

"The Family Code also specifically states that where the party possesses sufficient resources or income to be self supporting, that spousal support shall not be ordered.  Obviously, that's more likely to be the case in marriages of shorter duration.  If you've only been in the marriage for a short period of time, it's not likely that you've lost the job skills you need to earn a living." - Kevin M., Attorney at Law

Probably the number one factor is going to be the ability of the spouse to support his or her self. It says in the Family Code that the objective of the State of California is to see that every person is self-supporting, so alimony is seen - ideally - as a temporary fix for someone who's being divorced and can't make a living. Look, here's the classic case for alimony. A man and a woman get married when they're very young. She drops out of college and works so that he can get his degrees. Then she gets pregnant and rears his children. Then he gets a burr under his saddle and decides he just has to get a red sports car and shack up with his twenty year old secretary. In that kind of a case you've got nearly ALL of the classic factors.

- The wife has given up a great deal for the marriage and contributed greatly to the man's financial well-being.

-The wife has no job skills, because she's spent her adult life rearing the children.

- It a marriage of long duration.

- The man's caused the marital breakup, and, as a result of that, the woman's going to be out on her ear with no job and no skills.

"Yeah, that kind of a guy is going to get hit hard.  You pay dearly for those mid-life crises." - Pete K., Attorney at Law

You can still end up paying alimony. Remember, the major goal is for both parties to be able to support themselves. If one party is making a good living and the other party has no job skills, the Judge may very well order alimony for a period of time. The idea is that it gives the party with no skills a chance to go back to school and get a vocation.

"In some cases, the judge will actually order that the person be examined by a vocational counselor, so that he's got an accurate fix on just what job skills he or she has, and what kind of training they may need.  That seques with the judge having to determine just what the marital life-style was, and how much income is needed to maintain it." - James T., Attorney at Law

Yes, he can. You still don't see it very much, but it's very possible. Particularly in a state that's as liberal as California, you do have cases where the man has been the house-husband. He stays home and takes care of the kids and the wife pursues a career. That scenario is still rare, but it's happening more and more. In a case where the women has good income and the man doesn't, he can ask for alimony and it should be awarded, according to the state code.

"I've had a couple of cases where the man asked for alimony.  Both of them involved couples who were in the computer industry.  That's such a volatile industry that you can be making a fortune one month and unemployed the next.  In both of these cases the men had been laid off and the women hadn't, so they genuinely needed the support for a short period of time."  Martha T. - Attorney at Law

No, both parties can waive the award of alimony. Actually, you've got a couple of choices on that. You can waive it forever, or you can waive it, but reserve the right to ask for it later, if it turns out that you can't make a living.

"In the marriages of longer duration - over 10 years - the court will retain jurisdiction over the issue of spousal support.  You can waive the support in your marital settlement agreement, but the court can modify that at a future time and place."  -Antonio B., Attorney at Law

Not necessarily, but it can happen. Remember, the spouses are supposed to be able to maintain a life style that's roughly equivalent to the one they had when they were married. So, if you were able to live in a house when you were married and you can only afford an apartment as a result of the divorce, you could ask for alimony. That's exactly where you see some of the insane alimony awards in California. Movie stars who insist that they need three hundred thousand a month for clothes, because that's what they had when they were married. And it happens.

"The court can deny support if the other party has sufficient income or a sufficient separate estate to provide for an adequate living.  Where people get into it with each other is arguing about what's adequate.  I've seen men who think a one bedroom apartment is adequate for their ex-wives when they've been living in a 3800 square foot house."  - Don W. , Attorney at Law

The person paying the alimony get the tax deduction and the person receiving it has to pay taxes on it.

Yep. If your or your spouse dies. If the person receiving the alimony remarries, or openly cohabits with another person,you can go back in to court. If it's obvious that the spouse receiving the alimony is making no effort at all to make a living or learn a trade.There are a few factors a Judge will take into account in modifying a spousal support order.

"In some instances, the judge will order that the person paying the support has to insure that it will go on after his or her death.  They'll have to set up a trust fund or an annuity, so that the supported spouse will continue to be taken care of in the case of an untimely demise.  - Dan E. ,Attorney at Law

California law says that an order for withholding income will be issued in every case where spousal support is ordered.

"You can ask for that to be waived in a marital settlement agreement.  If there's a problem down the road you can go back in and have it issued at a later date." - Martha T. Attorney at Law

Alimony, known as spousal support, can be one of the most inflammatory issues in a divorce.  It's also one of the least understood issues in some ways.  Many people consider alimony to be a sort of a dole to their ex-spouses, a pay off for the mistake of getting married to them.

The California Family Code, though, specifically states that it is in the public interest for every adult to be self supporting.  In other words, alimony is seen by the law as a transitional state, an opportunity for one member of the marriage to get it together and start earning his/her own living.  Except in very rare cases, it is not meant to be a permanent arrangement.

  Spousal Support Before and After the Divorce  

First of all, it's important to distinguish between spousal support before the divorce is granted and spousal support after the divorce.  Just setting up separate households doesn't end your obligation for spousal support.  If, for instance, your spouse has to borrow money in order to pay the rent or buy groceries, the creditors can still come after you.  

There's also a mess that some people get into with temporary restraining orders.  You see men who walk out on their families and leave them with no money or food.  That's a classic scenario for the wife hiring a lawyer and the man being hauled in front of a judge and ordered to pay child and spousal support until the divorce is granted.  And, usually, the spousal support is higher than it will be in the final judgment for divorce.  So, the wife has a built in motivation to delay the divorce for as long as possible and keep that higher support flowing in.  

Spousal support after the divorce is a different ball of wax. Alimony flows straight out of the traditional model of marriage.  A man and a woman get married, the man goes out into the world to make a living, and the woman stays home and rears the children.  When a divorce occurs, the man has the career and ability to earn a living and the woman has no skills, other than being a housewife.  The judge orders the man to make monthly payments to support his ex-wife until she has the opportunity to get her own training and career.  

Now, obviously, a lot of marriages aren't like that anymore, especially in California.  Many marriages have both parties working and sometimes the woman is earning far more than the man, but the rules that were formed in the old days are still applied today, to a greater or lesser extent.

California breaks marriages down in terms of time.  You have marriages of greater duration and marriages of lesser duration.  Usually marriages of greater duration are considered to be over ten years, although that's up to the judge in a contested case.  

The reason that the duration rules are important is that different rules apply for each type.  If you have a marriage of lesser duration, you can ask the judge to terminate the court's jurisdiction over spousal support at the point that the divorce is granted.  If the judge does that, there are no come-backs;  you don't have to worry about your spouse going back into court and asking that you be ordered to pay spousal support.  In marriages of greater duration, the judge is not allowed to terminate the courts jurisdiction, and your ex can go back in.  

There's also more of a defined time line in marriages of lesser duration.  Usually, if you've been married for less than 10 years and you're ordered to pay support, its going to be for one half of the period of time that you've been married.  In other words, if you were married for 9 years, your'e probably looking at 4 ½ years of alimony.  With marriages of greater duration, it can go on for much longer, even for life in some occasions.

Spousal support is one of those areas where you are almost always better off using a Marital Settlement Agreement, rather than asking a judge to rule on it.  In an MSA, the two of you define exactly what the payments are going to be, how long they're going to go on, and what conditions will trigger the end of the payments.  

Say, for instance, that Frank and Paula have been married for 9 years.  They're one of those non-traditional families that we're seeing more and more of.  Frank decided to quit his job and be a house-husband after they had a baby.  Paula has continued her career in the computer industry and is making a very nice living at the time the divorce occurs.  Frank, who also used to work in the computer industry, finds that his skills are terribly out of date and he can't get a job.  

Now, Frank and Paula can sit down and figure out exactly how long it's going to take him to get those skills back.  If, for instance, Paula is getting custody of the child, Frank can go to school full time and may be able to finish up in a couple of years.  On the other hand, if he's getting custody, it's not only going to take him longer, but he may not be able to work a part time job and raise the child and go to school.  So, the payments would go on for a longer period of time, and they'd be more.  

And they can define what will trigger the end of the payments. The spousal support will continue for 4 ½ years OR until Frank finishes his training OR Frank gets a job paying at least $30,000 a year OR Frank remarries OR either party dies.  

What happens when you take that same situation in front of a judge in a contested case and ask the judge to decide?  You've got a real crap shoot.  

First of all, the judge may wave his/her magic wand and decide that it's actually a marriage of longer duration, since it was so close to the ten year mark. Then the judge is required by state law to consider all of a number of factors that the family code outlines.  One of those involves trying to maintain the standard of living that the individual had during the marriage, which is sort of like trying to pull a rabbit out of a hat.  After all, if you were making $60,000 a year going into a divorce, the odds are that you're going to be making the same amount coming out of it, only now you've got two households, instead of one.  

The judge would also have to consider whether Frank had contributed to Paula's ability to make a living.  In other words, would Paula have been able to go out and pursue that career as aggressively as she did if Frank hadn't been home taking care of their child? Here are some other things the judge would have to consider:  

How much is Paula actually able to pay and still maintain the standards of living established during the marriage?  

How much do each of the parties need, based on the standards of living established during the marriage? 

How much property and debts do each of them have?  

How long has the marriage lasted?  

If Frank's getting custody, how much is he actually able to work without hurting the welfare of the child?  

How old are Frank and Paula and are they each in good health?  

How long is it going to take Frank to get back on his feet?  

Is there any evidence of domestic abuse, or any convictions of the abusing spouse?  

What are the tax consequences to each party when spousal support is ordered?  

What are the burdens on each party when spousal support is ordered.  

And, finally, any other damned thing the judge wants to consider.

And, you have absolutely no idea what weight the judge is going to give to any of those factors.  Suppose you draw a really traditional, conservative judge.  Is he going to make Frank's spousal support less because he thinks men should be out there working instead of rearing children?  Or is he going to make it higher because he thinks that Paula should have been home taking care of the child?  The judges' decision may be very realistic, or it may be totally arbitrary but it's still his decision.