3 Alimony Myths Exposed: The Truth About Alimony Laws In California

David D. Stein

© Liaise® Mediated Solutions, LLC 2012

A large portion of this company’s California mediation practice focuses on assisting couples seeking to end their marriage through mediation as opposed to litigation. It is amazing to me how often couples seeking our guidance come in with well ingrained false notions regarding spousal support as it operates under California law. With the California Alimony Lawsamount of misinformation on the internet, I find myself constantly reeducating couples on the truths of spousal support. The three misconceptions below come up so often I felt compelled to address them. Read below to see if you are a victim of false information.

One of 3 general misconceptions is often at the root of having to reeducate a party from what they have gleaned off of the Internet or from poorly informed friends.

Myth # 1 – Alimony Is an Absolute Right

Spousal support is not mandatory in dissolution or legal separation proceedings. As a matter fact, quite the contrary is true. Courts have broad discretion to deny spousal support altogether ( 1).

Before a judge orders or denies spousal support there must first be a careful consideration of the legal factors ( 2). These factors shed light on how the earning capacity of each party is, or is not, enough to maintain the lifestyle established during the marriage taking into account all of the following 15 factors:

  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.
  3. 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.
  4. 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.
  5. The needs of each party based on the standard of living established during the marriage.
  6. The obligations and assets, including the separate property, of each party.
  7. The duration of the marriage.
  8. 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.
  9. The age and health of the parties.
  10. Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, 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.
  11. The immediate and specific tax consequences to each party.
  12. The balance of the hardships to each party.
  13. 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.
  14. 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 4325.
  15. Any other factors the court determines are just and equitable.

Clearly doing this evaluation is a daunting task. Even if you do not go through each one, take a special look at the crucial “15th” factor; “Any Other Factors the Court Determines Are Just and Equitable“. Many Family Law practitioners refer to this factor as the “Wild Card”.

In California the issue of determining spousal support becomes even more complicated. This is because of the fact that the single largest line-item in any family budget is, generally, housing. When you split up a single household and attempt to support two separate households there is rarely enough money to go around guaranteeing both parties the same standards they enjoyed during marriage.

When you are contemplating how all of the above factors impact upon your individual situation also think about this. On the Judgment( 3) form which is used in every single dissolution action in California the following words appear:

NOTICE: It is the goal of this state that each party shall make reasonable good faith efforts to become self-supporting as provided for in section 4320 of the family code. The failure to make reasonable good faith efforts may be one of the factors considered by the court as a basis for modifying or terminating support.”

So there you have it. It is the express public policy of the state of California that everybody supports themselves.

Where does that leave two people thinking about divorcing and trying to plan for their separate futures?

On the one hand, by no means is spousal support impossible. It happens and is so ordered, every day. On the other hand, those seeking support are walking into the headwind of the stated public policy of California. The answer to this question, like so many questions in legal proceedings, is that it is better to negotiate an agreement on the issue of spousal support rather than leave it to the recklessly spinning “Wheel of Misfortune” ( 4) that is litigation.

Looking for a Divorce (family issues) dispute Mediator? Call or Contact for Free Mediation Consultation in San Francisco, the Bay Area or throughout California by on-line video conference!

Myth # 2 – After 10 Years Alimony Is “Guaranteed for Life”.

Being married for more than 10 years does not cause one party to become the “indentured servant” of the other party. We learned from Myth #1 that spousal support, if any, the amount of spousal support, and the duration of that spousal support is determined by a careful balancing and weighing of legal factors( 5).

The confusion on this point might be traceable to Family Code §4336. This section makes it clear that in a marriage of “long duration” the court retains jurisdiction indefinitely on the issue of spousal support. This section clarifies that there is a presumption that a marriage of 10 years or more is a marriage of long duration. This means the door to the court remains open, but there is no guarantee that support will be ordered.

The same factors that must be weighed and balanced when the divorce is fresh must also be evaluated at any step down the road when a party is seeking spousal support. If the supported party has not made reasonable good faith efforts to become self-supporting they may find themselves denied in any future application for continuing support.

Myth # 3 – The Amount of Alimony Is Determined by a Computer Program.

I can’t tell you how many times we have couples come to our offices and one or the other will say, “We already know what the spousal support amount is, we ran the number”. To which we must reply no, no, no. If only it were that simple.

The law is the law. Family Code section 4320 must be followed in ascertaining the proper amount of spousal support.

This confusion comes from the fact that the computer programs that allow a court to calculate proper child support also have a function to determine proper temporary spousal support.

The typical situation is as follows:

  1. There’s a marriage and the breadwinner decides that he or she has had enough and moves out.
  2. The supported spouse files for dissolution or legal separation.
  3. Courts move very slowly and there won’t be a trial on this matter for 18 to 24 months( 6). What’s a party to do?
  4. The party goes into court on a short term calendar known as an “Order to Show Cause”, or “Noticed Motion”.
  5. These matters can be in front of a judge in 14 days or less. However they are usually limited to no more than 20 minutes( 7)
  6. On a short cause calendar the Judge has little or no evidence before her to do the exhaustive examination called for by Family Code section 4320.
  7. Instead, the law allows for the ordering of temporary spousal support until there is a trial or other settlement. For this very limited purpose a Judge is allowed to use the temporary spousal support function of the child support calculation program( 8).

Sadly, it is true that there are a lot of lazy lawyers and lazy judges who rely on this temporary support calculation to calculate long-term support. This is an error. It is settled law in California that temporary spousal support computer programs cannot be used to determine “permanent” spousal support. It is also very clear in the law that the number produced by a temporary spousal support calculator cannot even be used as a “jumping off point” to begin negotiations of proper spousal support. The required weighing of legal factors cannot be delegated to a mere computer program ( 9).

So where does this leave people looking to end their marriage?

The fact of the matter is it leaves them in the very best position to determine what appropriate spousal support is in their unique situation. It also makes it clear that it is ill-advised to try and arrive at that number in anything other than a thoughtful, negotiated method. The parties who’ve been husband and wife must sit down together and do their best to plan how they will manage to live separately. Attempting to do it any other way is wasteful, expensive and very stressful. It is smart to attempt this task in the form of a “supported conversation” with a professional mediator, well-trained in family law and finance who can assist the parties in arriving at the best resolution possible.

David D. Stein has been an attorney for 20 years and the founder of Liaise® Divorce Solutions. He is a trained mediator, dispute resolution specialist and lecturer on non-violent conflict management techniques and tools.

California Alimony Laws Free consultation

Notes:

  1. Marriage of Pendleton and Firemen (2000)
  2. As set forth in Family Code 4320
  3. In California, divorce is done using “shortcut” pleadings forms produced by the Judicial Counsel
  4. “Wheel of Misfortune” because if you consider the cost of paying two lawyers to argue your case, it is a rigged game and there is no way a family can “win”
  5. Enumerated in Family Code 4320
  6. 18 to 24 month was the time estimate in the “good old days.” Today a trial in 24 months is lightning fast
  7. These hearings are further constrained as to the evidence that may be presented
  8. This “short form” spousal support calculation only takes into account income, ignores expenses and cannot possible provide for the comprehensive review mandated in the Family Code
  9. [Marriage of Burlini (1983); Marriage of Olson (1993); Marriage of Schulze (1997); Marriage of Zywicel (2000)]


41 Comments

  1. I would like to seek a free consultation, please.

    W: 415.600.3797
    C: 415.637.9002 Business hours, only, please
    My wife and I are still living under the same roof, but I feel a separation and divorce is imminent. I do not know how to proceed – I wish to be fair and transparent with her.
    Thank you.

    • Paul, it will be our great pleasure to assist you at the difficult time. I have already forwarded our free e-book introduction and I am awaiting your call.

  2. Hi,

    I’m assisting a family member in finding an attorney to represent him in a divorce. Please send the e-book introduction to the e-mail provided and we’ll be in touch. Do you offer an initial free phone consultation? Thank you.

    • ddstein

      Sarah, We always provide a free initial consultation. I will send you the e-book using our regular e-mail. Thanks for the comment.

  3. I am an active duty military member and need some advise. I currently already have a lawyer but she is doing a horrible job. I hired her 5 months ago to help with an uncontested divorce and I constantly have to call to get information and push the process. She has sent me two draft settlement agreements that both have been completely wrong. She has a copy of our taxes, my pay stubs, and my wife’s pay stubs. This divorce is extremely easy as my wife and I have agreed on everything and have nothing that is left to dispute except what I have to pay for child support and alimony. She for the past two months has told me she does not have the numbers to figure out what I will pay for child support or alimony then in the past week she has given me three different numbers that range from $500 per month to $1088 per month for 1 child. My wife is a teacher that makes pretty good money and I am in the military and make slightly more than her. I guess to make a short story long is there any way to recoupe this money that I paid to the lawyer for being incompetent. (flat rate) and hire another lawyer (you possibly)?

    • William, Thanks for the interest. We’ve got your back. I will send you an e-mail in about 1 minute and show you the best path forward.

  4. Shawn Gordon

    My situation is nearly similar to Williams, we’re doing everything ourselves and I’m down to the final forms and discussing child support and alimony. I’ve used the ca.gov guideliner to come up with some scenarios for child support, but it won’t show the temporary spousal support. We’re going to sit down with family and split things up shortly then just need an attorney to write the stipulation agreement. Could someone contact me for the free consultation? I just have a few questions. Thanks.

    • ddstein

      Hello Shawn, We will be happy to do all we can to facilitate your settlement. I’ll send you an e-mail in a minute.

  5. Joe pena

    Please send me ebook. I don’t have any idea where to start. Thanks Joe

    • Hello Joe. Our pleasure to provide the requested book. Stand by, it’s in the e-mail.

  6. Greetings,
    If I may please have a copy of the ebook I would be thankful.

  7. Hello. My situation is similar to William’s. Very concerning that so much money has been spent with no resolution and conflicting information coming from our separate attorneys. We’ve agreed on division of assets (don’t really have any). We just need this to end as it’s gone on over a year now. Our issues are:

    1.How does bonus (I earn a base pay plus an annual bonus) calculate into spousal support (temp dissomaster shows potentially 36% and for duration in a long term marriage of 20 years)?

    2. I marked the box on our initial court filing that I would be responsible for paying her attorney fees. But that figure is now nearly $50k and my attorney $20k and we havent even gone to court as we are both wanting an out of court marital agreement/dissolution. I think she should be responsible for her own attorney fees even though she has no income except the temp support I’m paying. Will I have to pay her attorney fees?

    Thank you!

    • Hello Lynn, it will be my pleasure to send you the e-book and I’ll be certain to follow with a call to see how Team Liaise can be of service. dds

  8. Will you please send me your e-book?
    thank you

  9. very similar to everyone else’s situation. Child support has been very easily calculated but there is heated debate over spousal support. (15 yr marriage, 12 yrs as stay-at-home mom with HS education)

    • Emily, Spousal Support is often the difficult conversation. You should call us and get some professional support. I’ll send you an e-mail with all my contact info.

  10. Could I please receive a copy of the e-book?

    Thanks

  11. anky van deursen

    please send me ebook

  12. Hello,
    My situation is complicated.My husband past away September 28,2012.
    I just found out that he filed for divorce in August 24,2007. Finalized in September 10,2008.In his paper work he stated that there were no assets to devide nor debts. He falseified his income and exspense decloration. He stated that there were no life insurence policies, he later cashed in 2009. As well as his retirement. The judge left open jurisdiction to award spousal support. Is there a way to vacate the divorce?

    • Hello Trish,
      The situation you describe is complex. Please feel free to contact me to think this through together.

  13. William D

    Could I please have a copy as well….have no idea where to start this divorce process.

    Thank you

    • ddstein

      Hello William, It will be our pleasure to send you the book. Stand by.

  14. I have been divorced for 7 years, and I pay child support. Nothing was brought up about paying alimony. My ex wife and I were married 11 years.

    My question is, Can she go to court and ask that I pay alimony after being divorced for 7 years? I just recently found a full time job that pays almost 3 times more money.

    • ddstein

      Hello Mark, the answer to your question is, it depends. Depends on the Judgment you had entered – but the default answer would be, yes after an 11 year marriage – it would be unlikely that there is no opportunity to request support. However, the best path forward is always through mediation. Contact us and we’ll help you start the conversation

  15. Excellent article! We will be linking to this particularly great post on our site.
    Keep up the great writing.

  16. Its like you read my mind! You seem to know so much about this, like you
    wrote the book in it or something. I think that you
    can do with some pics to drive the message home a little bit, but instead of that, this is wonderful blog.
    An excellent read. I will definitely be back.

    • ddstein

      Thank you so much! We are sincere in our desire to be of service.

  17. Great info about the ten year rule and alimony. Details and law provide exacting information sought. Thank you!!

    • ddstein

      Thanks Darren – We try to be a good resource. Let us know if we can help you.

  18. Can I have an ebook please. I don’t know where nor how to start the divorce process. We’ve only been married for 6 yrs, no child together but we have one each fr our previous relationship. I earn more than he does and not much of a property to divide since our house in Florida ( where we got married) is going on a short sale.I know that my husband is going to give me a hard time since he doesn’t want to be divorced fr me. My biggest problem right now is I live in Fairfield and will be very hard for me to drive to SF to meet you because I’m not that good in driving yet, I’m too scared to drive and I don’t know anybody who can drive me there, I’m fairly new in the area.
    Is there any way to work this out ?Please help.

    • Hello Libby, We will do our best to help you and your husband. I’ve left you a voice message and I sent an e-book. Call me to start the conversation.

  19. Please send me an e-book. I am in the beginning processes of a separation and divorce from my wife. I am active duty military and she is a office manager/paralegal who has worked for the entire duration of our marriage. She absolutely makes less money than I do and I was never arguing about paying a reasonable amount of spousal support until she can get situated or whatever we agree upon. Unfortunately, she is now telling me she plans on quiting in roughly a month and now she has requested an entirely larger amount. She does have medical issues but they never precluded her from working 40-60 hrs per week for our entire marriage. We are both trying very hard to not go to court but I feel she may have painted me into a corner. What now??? Great “3 Myth…” article. Thank you!

  20. I am helping a friend with her CA dissolution. She paid $3,000 to an attorney who filed a Motion to Withdraw as Counsel without informing my friend, the client. My friend learned she’d been dumped when the Order Granting Motion to Withdraw as Counsel was received.

    From what I can tell, paperwork was filed with the court in 09/2012. Nothing much has happened since, other than 2 rounds of discovery requested from my friend. Her ex has provided 1 set of discovery documents, back in 05/2013, so that’s not current anymore.

    My friend (and her ex, from what I can tell) both want to settle this matter without going to trial and to limit their legal expenses, but the lawyers don’t seem to have allowed that to happen. (He’s had 3 lawyers to date, and, as mentioned, she got “fired” by her lawyer without notice.)

    Can you send your book?

  21. Hello,

    Similar situation. 10+ years of marriage, one child, I am higher earner

    Spoke to one attorney for an hour but not happy with the specifics as I found more on a website than he told me

    How can I get an appointment (virtual or in person – I am in California)

    thank you

    • HELLO Tony, I will contact you directly and set a time for us to talk. Best,

  22. Please send e-book. Thanks!

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