Spousal support, also called “alimony” or “maintenance”, is often an issue in Los Angeles divorce and legal separation cases. There is a myriad of issues that may arise when alimony is an issue in a Los Angeles dissolution of marriage case, and this page attempts to identify those issues and provide basic information about spousal support. Keep in mind that this page is not intended to be comprehensive and cover all issues related to spousal support, and it is important for anyone going through a divorce to seek out their own attorney to get legal advice.
Support Obligation During Marriage
Married spouses are required to support their spouse and provide them with the necessities of life, which includes food, shelter and clothing. (See Fam. Code 4300). The law requires that spouses provide the necessities of life out of his or her separate property even if there are no community property assets to support the other party, but only so long as the parties are living together. In the event spouses are living separately and one spouse receives government aide, the county where the aided spouse resides may seek reimbursement from the other spouse for the government’s expenditures.
Temporary Spousal Support
Temporary spousal support or maintenance orders in Los Angeles divorce cases are made when one spouse brings a request to court, through the filing of a Request for Order (or RFO), and asks the judge to make a temporary order while the divorce case is pending.
Factors to Consider in Temporary Spousal Support Cases
Several things are necessary when a party files a request for temporary spousal support in the Los Angeles Family Court. First, the moving party must file an Income & Expense Declaration. The document must be accurate as it is signed under penalty of perjury.
Second, the requesting spouse must show there is a need for the supported party to receive support.
Third, the requesting spouse must show the supporting party has an ability to pay support.
At the hearing on temporary support, each party will have the opportunity to explain to the court why or why not spousal support should be ordered. When the court orders spousal support on a temporary basis, the order will remain in place until the case is resolved by judgment or the court enters a further order during the case.
Permanent Spousal Support
Permanent spousal support is ordered in Los Angeles divorce cases when the parties have reached an agreement and the issue is relevant to their case, or after the parties have participated in a trial and the court enters an order.
The word “permanent” may be a misleading. Spousal support entered after judgment is called permanent even though the order may be for a relatively short period of time.
Factors to Consider in Permanent Spousal Support Cases
Family Code 4320 is the statute that provides all the factors that the court must consider when ordering permanent spousal support in Los Angeles.
In ordering spousal support, the court must consider all of the following circumstances:
(a) The extent to which the earning capacity (which means the ability to earn an income) of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
(1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.
(2) The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
(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 of the supporting party to pay spousal support, 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.
(i) Documented evidence, including a plea of nolo contendere (which means “no contest”), of any history of domestic violence, as defined in Section 6211, between the parties or perpetrated by either party against either party’s child, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.
(j) The immediate and specific tax consequences to each party.
(k) The balance of the hardships to each party.
(l) 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.
(m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4324.5 or 4325.
(n) Any other factors the court determines are just and equitable. (This is the catch-all phrase that allows the court to consider any other fact that might be relevant as to the issue of spousal support).
Cohabitation
Pursuant to Family Code 4323, there is a presumption that when a party cohabitates with another person other than a bona fide roommate situation (i.e. the party and the other person are in a relationship), there is a presumed reduced need for spousal support.
After the Los Angeles Family Court enters a judgment for alimony and the supporting spouse believes that the supported spouse is cohabitating and, in a relationship, the supporting party can bring a motion asking the court to reduce or terminate spousal support because of that cohabitation and apparent reduced need for support.
Modification of Spousal Support Orders
Orders of “permanent” spousal support or alimony in Los Angeles can be modified, except in circumstances where the court no longer has jurisdiction (which means the power to make an order), or the terms of a previous spousal support judgment indicates that the terms are non-modifiable.
When a party wishes to seek an increase or decrease in spousal support, they must file a motion (called a Request for Order). The court must have the authority to hear the case. For example, if parties divorced in Los Angeles and one party seeks to modify the judgment concerning spousal support, they would file at the Los Angeles Family Court.
The party seeking modification of a spousal support order must show that there has been a material change of circumstance since the previous judgment was entered warranting modification. Usually, parties seeking an upward or downward modification of alimony allege that a party is now unemployed, or assets have been lost due to unforeseen circumstances whereby the income from those assets is decreased, or a party has come across health issues.
Tax Treatment of Spousal Support
In the past, spousal support (alimony) payments were tax deductible to the payor and taxable income to the recipient. However, the Tax Cuts and Jobs Act, which is effective in relation to alimony payments from any orders or judgments made on or after January 1, 2019, disallows the deductibility of spousal support payments. This means that the payor of spousal support cannot deduct the payments of alimony from his or her income, and the recipient is no longer taxed on the spousal support payments. This results in a net benefit to the government, and the Los Angeles Family Court judges will simply start “tax effecting” the alimony orders so that the order is fair to both parties.
Length of Time Spousal Support is Ordered
Our clients often wonder, “How long does spousal support last”? Both the person who will be paying support and the recipient are both concerned with this important question.
The answer to the question of how long spousal support is paid depends on the length of marriage, in most cases. When a marriage is less than 10 years, the law considers those marriages “short term” and the general rule is that if spousal support is ordered, the term will be for a maximum of one-half the length of marriage. The court is not precluded from ordering alimony for a longer or shorter period of time if necessary given the circumstances.
When a marriage is more than 10 years, the law considers those marriages “long term” and therefore alimony orders can last for as long as necessary given the circumstances.
Spousal support automatically terminates on the death of the payor or recipient, remarriage of the recipient, or other factors as the parties may have agreed in their Marital Settlement Agreement.
Security for Future Spousal Support
Pursuant to Family Code 4360, the court may order the supporting spouse to secure a life insurance policy or annuity payable to the supported spouse in the event of the supporting spouse’s death. Alternatively, the court can order the supporting party to create a trust for the supported party’s benefit. These requirements are often made by the Los Angeles family court judge when a spousal support and/or child support order is entered.
Guide to Enforcement of Spousal Support Orders / Spousal Support Arrears / Collection of Past Due Spousal Support
When one party owes child support or spousal support to the other party, and fails to pay, there are numerous tools available to the recipient to secure payment of arrears. Arrears means past-due amounts owed, in this case, for spousal support.
Some of the tools available to the person owed support money is to file a contempt action (which alleges that the other party knowingly and willingly violated a court order while having the ability to comply with the order), issuing and effectuating on a writ of execution, filing liens or “abstracts” of judgment on property, filing a motion for the court to determine the amount of arrears owed and interest that has accrued, and so forth.
For more information about collection of arrears, visit our enforcement and collection page, here.
Contact Us
For more information about alimony and spousal support, feel free to contact our office today. We offer a free, private consultation and will be happy to explain spousal support law to you in a manner that is easy to understand and in plain English.