Top-Rated Divorce Lawyers in San Bernardino, CA
If you’re about to begin a divorce proceeding, spousal support (“alimony”) will be one of the first things you’ll face. The Law Office of Michael R. Young has compiled a list of things you’ll need to understand about spousal support. If you are looking for a compassionate and knowledgeable lawyer to represent you, our firm can ensure that your rights and interests are protected in court.
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Spousal Support Concerns: How Long & How Much
The two most common issues in spousal support is how long support will be paid and how much will be paid. To make this determination, the court will consider the length of the marriage and several other factors. Usually, a good rule of thumb is spousal support will last for one-half the length of the marriage. However, in California, the duration of the marriage is left to the sound discretion of the court.
The “10-Year Rule”
The court will consider some general equitable principles and guidelines set forth in case histories.
For marriages of less than 10 years in California, the statute provides a presumption that it should be granted for half the length of the marriage.
In California, including local courts in San Bernardino, Riverside, and Hemet, the law provides that if permanent spousal support is established at the time of trial, the court is not to set a future termination date if the marriage is of “lengthy duration.” Any marriage of 10 years is considered lengthy. Recently, courts have ruled that spousal support is only provided during the transition period from married to single life. While circumstances vary from person-to-person, the courts do not favor “lifetime support.”
The Factors Determining Alimony Payment Size
Each court has a broad discretion when determining the amount of spousal support. Courts have adopted a guideline which suggests the appropriate range of spousal support on a temporary basis. Many counties do not allow the guideline to be the sole indicator of the amount of permanent spousal support.
California state law provides that the court should consider the following factors when determining the amount of spousal support to award:
- The earning capacity of each spouse
- The effort the supported party put it to attain the career and education of the supporting party
- How capable the supporting party is to pay
- The standard of living during the marriage
- The separate property of each spouse
- How long the marriage lasted
- The capability of the supported party to find a job without affecting the children’s care
- How old each individual is and their state of health
- Whether or not there is any history of violence
- How severe the tax consequences are for each party
- The hardships that each individual is facing
- The ability of the supported party to become self-supporting within a reasonable period of time
How Is Spousal Support Calculated?
In most cases, support will be requested as soon as the petition is filed. This is called a “temporary spousal support order.” Many counties have formulas for calculating the amount of such support. In San Bernardino and Riverside Counties, the court’s use a computer program to determine this amount. The judge will not use a formula to determine how much to order at the end of the case.
- When the judge makes the final order, many factors will be evaluated and are set forth in California Family Code § 4320:
- Length of the marriage*
- Each person’s needs
- Ability to pay (earning and capacity)
- Employment interfering with care of the children
- The age and health of both parties
- Debts and property
- Spouse helped the other obtain an education, training, career, or professional license
- Domestic violence
- Spousal sacrifice by taking care of the children or home instead of career
- Tax consequences of spousal support**
- Spousal support usually ends as a result of:
- Court order or judgment
- Death of spouse
**Usually, spousal support is tax deductible for the supporting spouse and taxable income for the supported spouse.
Factors for Modification of Spousal Support
The court will consider various factors when evaluating modification requests, such as the ability of the supported spouse to engage in gainful employment without interfering with the interests of dependent children in their custody or the age and health of each spouse. The court may also consider other factors that it deems “just and equitable,” which may include remarriage, cohabitation, and retirement.
Remarriage or Cohabitation
Usually, a support order terminates upon the supported party’s remarriage. Cohabitation may also be considered when seeking a modification of support. However, more than a simple roommate or boarding house arrangement must exist. There must be evidence of a sexual relationship, a romantic involvement, or at least a “homemaker-companion” relationship. If your former spouse is cohabitating with a new partner, our firm will request that the court order a termination of support, or at least a reduction.
If the supporting party retires by at least 65, there may be a sufficient basis to warrant a termination of support. However, in cases where the supporting spouse elects to take an early retirement the court may properly deny a spousal support modification request.
If there has been a substantial change in circumstances since the order, we can request to terminate or reduce your existing support obligation. However, each case is distinct and depends upon the many unique facts and circumstances. We can meet with you to review your case and provide you with more detailed information about how best to proceed when a modification of spousal support is sought.
When Your Ex-Spouse Is Self-Supporting
Current California law emphasizes that even in long-term marriages (10 years or more), the supported spouse has a duty to become self-supporting “within a reasonable period of time.” Where the duration of the marriage is less than 10 years, support orders typically last about half the length of the marriage. Toward that end, the court will issue a “Gavron warning,” which means that the supported spouse should become self-supporting. A failure to do so may be grounds for reducing or terminating support. If a spousal support order does not contain a Gavron warning, we immediately ask the court to issue one.
When the court gives such a warning, we will ascertain what efforts your former spouse has made since the date of separation to achieve self-sufficiency. If there has not been such efforts, we will request that the court terminate support or that the court impute more income to contribute to their own support. On the other hand, if your ex-spouse has increased earnings, we have a good argument for the court to reduce support payments.
Where support is significant and the estate is large enough, the deposition of your former spouse can be useful. While common in civil litigation, dissolution cases normally do not have depositions. However, a deposition can be very useful in helping us obtain specific information regarding what your former spouse has done since the time of the spousal support order to seek employment and other factors such as assets, inheritance, or other types of relevant information to help us be successful in your request.
Modifying Spousal Support Based on “Ability to Pay”
Post-separation income increases for the supporting spouse may NOT be considered by the court as a basis for modifying support. Therefore, a raise in income is not to be considered if a modification request is made. The court will look to the standard of living established during the marriage. In addition, any income of the supporting spouse’s subsequent spouse or non-marital partner is not to be considered.
Modifying Spousal Support Based on Standard of Living
If there is not an initial spousal support order and there is a very high income, a “standard of living analysis” can be performed by a forensic accountant and be helpful in determining the correct amount of spousal support. This analysis is very persuasive and calculates the standard of living based on the marital standard of living on a monthly basis. It allocates the amounts previously spent during the marriage and determines what amount it would take to sustain that standard of living.
Contact The Law Office of Michael R. Young at (909) 315-4588 to speak with our San Bernardino divorce lawyers in a free consultation. 40+ years’ collective experience.
- Thinking about filing for divorce
- Concerned about custody of your children
- Worried about the division of your property
What is a contested divorce
When spouses don’t agree on an issue, whether it involves child custody or spousal support, a divorce is considered contested. It is the most complicated type of divorce, as a couple will need to go through numerous steps to finalize their divorce. Since contested divorces often go to divorce court with a judge, having legal representation during the trial is crucial.
How is spousal support or alimony calculated
There are numerous factors considered when a judge is determining how much and how long alimony should be paid. Some of those factors include the earning capacity of each spouse, how long the marriage lasted, the standard of living during the marriage, each spouse’s health and age, marital debts and property, and the sacrifices each spouse made during the marriage (such as staying at home with the children so the other spouse could work).
Who pays child support and how is child support determined
The noncustodial parent will be responsible for child support if the court determines it is necessary or parents come to an agreement to be approved by the court. The factors used to determined child support include the income / earning capacity of each parent, the number of children shared, each parent’s expenses, child care expenses, and other related issues.
How is property divided
California is a community property state. That means each spouse is given 50% ownership of the property accumulated during the marriage. This can include homes, vehicles, art, checking accounts, retirement / pension funds, small businesses, and other valuables. Items, accounts, or valuables that were kept separate throughout the entire marriage may be considered separate property and are therefore not subject to property division laws.
How long does it take for a divorce to be final
This can depend on a number of factors, such as whether it is a contested or uncontested divorce. Even if a divorce is uncontested, there is a six-month waiting period in California for the judge to grant a divorce. Likewise, those seeking contested divorces must wait six months for a trial to be ordered. How quickly a divorce is finalized will also depend heavily on how easily spouses agree on matters such as child support, property division, alimony, child custody, and other important matters.
Why should I hire a family law and divorce attorney
Going through a divorce or family law dispute can be complicated, confusing, and emotional. Regardless of whether spouses or family members think they are on the same page, having an attorney who is looking out for the best interests of the client can be invaluable. When you hire an attorney, you can have peace of mind knowing your rights and interests will be protected throughout the process. It can also take a great burden off your shoulders during a volatile or emotionally challenging time.
With more than 40 years of combined experience, our divorce and family lawyers are compassionate, caring professionals.
e understand how challenging family law disputes can be, whether involving a heated child custody battle or a complex divorce. As a firm with an AV Preeminent® rating and a 10.0 Superb Avvo rating, we are committed to maintaining a standard of excellence in our representation. Why? Because we know that your family and your future is on the line. When you retain us, you are getting understanding, knowledgeable advocates on your side.
With over four decades of collective insight, we are well-versed on handling even the most complex family law issues in California, from grandparents’ rights to domestic violence and restraining orders. When you need a compassionate family law attorney that you can trust to have your best interests in mind every step of the way, turn to our firm.
Our legal team strives to secure a favorable resolution as quickly as possible—whether in or out of court. Call us now at (909) 315-4588 to schedule your free consult.
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