The California approach to alimony awards in divorce

Unless the parties agree to alimony terms, the judge in divorce has broad discretion in California to decide the matter.

A major issue in divorce is that of alimony or spousal support: whether one ex-spouse will pay ongoing financial support to the other as well as how much and for how long. In California, if the parties cannot negotiate an alimony agreement, alimony will be left up to the judge's discretion.

Some states have begun to move away from judicial discretion in spousal support questions and toward tighter standards tending to make alimony awards lower, shorter and harder to get, especially long term or permanent. But California, despite some vocal reformists, is sticking with its emphasis on judicial discretion, at least for now.

For example, a California judge has discretion to determine the duration and amount of alimony, including the power to order ongoing payments with no termination date.

California weighs the standard of living of the parties during their marriage fairly heavily in the alimony equation. The judge must consider all of the following factors:

  • Whether each party has the earning capacity to maintain the marital standard of living, including the marketable skills of the supported party, what it would entail for that person to develop those skills or retrain to get more marketable skills or employment; and the extent to which the supported party's earning capacity is weaker because of time spent during the marriage unemployed and engaged in "domestic duties"
  • Whether the supported person helped the other spouse advance his or her education or career
  • Whether the paying spouse has the income and assets to pay alimony, considering his or her living standard
  • Each party's needs based on the marital standard of living
  • Each party's obligations, debts and assets
  • Marriage length
  • Whether the receiving party can work without harming the interests of dependent children in his or her custody
  • Each parties' age and health
  • Domestic violence
  • Tax consequences
  • The "balance of the hardships"
  • The goal that the receiving party will become self-supporting in a reasonable time, generally half the length of the marriage if the marriage was of "long duration" (generally of 10 years or more from marriage to separation, considering periods of separation); the court has discretion to order support for a shorter or longer period considering the listed factors, the marriage length and the circumstances
  • No alimony can be ordered paid to a spouse convicted of a violent sexual felony against the other (in a divorce filed within five years of the conviction plus time in custody, on probation or on parole); and certain restrictions apply when one spouse was convicted of domestic violence against the other
  • Any other factor the judge finds "just and equitable"

Alimony may not be ordered if the supported spouse was convicted of attempted murder or solicitation of murder of the payor.

However, with a few exceptions, the California court may not consider marital misconduct, a matter that varies widely from state to state, with some states requiring that marital misconduct be a factor in the alimony equation.

Alimony is terminated by death of either party or remarriage of the receiving party. Interestingly, subsequent cohabitation with a new partner by a supported ex-spouse does not automatically terminate the obligation, as it does in some other states. An alimony award may also be terminated or modified by a court if it has jurisdiction and circumstances have changed.

(The parties can depart by private agreement from almost all of the judge's requirements in an alimony decision.)

The family lawyers at the Law Office of Heather Cullen in Riverside represent clients in alimony and other related issues.

Keywords: California, alimony, divorce, judge, discretion, spousal support