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In California, alimony is referred to as “Spousal Maintenance.” Spousal Maintenance is a monthly payment made by one spouse to another as a means of financial support. California law has no presumption regarding spousal support.
In order to award spousal support, the court must find that the spouse receiving alimony is not able to support him or herself and lacks the ability to earn an income
A judge must consider what each spouse or partner can earn to keep a standard of living close to what they each had during the marriage or partnership.
To do this, the judge looks at the:
Length of the marriage or domestic partnership
The duration of a permanent or long-term spousal or partner support order is closely related to the length of the marriage or domestic partnership. The goal of spousal or partner support is that the spouse or partner getting support will be able to support himself or herself within a reasonable period of time.
The law says that, in general, a “reasonable period of time” may be one-half the length of the marriage/partnership. BUT the law also says that the judge has discretion (power) to make a different decision given the specific circumstances of the case.
There is an important exception. When a marriage or partnership is considered a “long-term” marriage or partnership (usually 10 years or more), the judge may not set an end date to the spousal or partner support.
The length of the marriage or domestic partnership is generally from the date of the marriage to the date of the separation. Because the date of separation can have very important consequences when it comes to deciding spousal or partner support, the parties in a divorce or separation case may not be able to agree on a date of separation, and the judge may have to decide what that date will be. Also, the judge can take into account the periods of separation during the marriage/partnership in deciding if the marriage/partnership is of long duration.
Domestic violence and spousal or partner support
When deciding spousal or partner support, the judge must take into account documented evidence of any history of domestic violence between the parties.
When the spouse or partner that would pay the support is the abusive person, the judge will consider any emotional distress resulting from the violence suffered by the spouse or partner to be supported.
The judge will also consider any history of violence at the hands of the spouse or partner to be supported against the person that would pay the support. And there is a rebuttable presumption against giving spousal or partner support to an abusive spouse or partner who has a criminal conviction for domestic violence against the other spouse or partner.
A California court determines the amount and duration of permanent spousal support by weighing twelve factors set out in Cal. Fam. Code §4320:
(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage
(b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party
(c) The ability to pay of the supporting party, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living
(d) The needs of each party based on the standard of living established during the marriage; (e) The obligations and assets, including the separate property, of each party
(f) The duration of the marriage
(g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party
(h) The age and health of the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party where the court finds documented evidence of a history of domestic violence, as defined in Section 6211, against the supported party by the supporting party
(i) The immediate and specific tax consequences to each party
(j) The balance of the hardships to each party
(k) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a "reasonable period of time" for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court's discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties; and
(l) Any other factors the court determines are just and equitable.
The judge doesn't have to use the Family Code Section 4320 factors to determine temporary support, so if one spouse is seeking support while the divorce is going on, the judge will likely use a formula set out by the local county to set the amount of temporary support.