How does a judge in an Orange County divorce case make a decision on spousal support (alimony)?
Spousal support, like child support, is based on the income of the parties. If one spouse makes significantly more money than the other, the court will generally order the higher earner spouse to pay spousal support. There are two types of spousal support. The first is temporary support, which is awarded while the divorce case is pending in Orange County. The second is final support, which is awarded at the end of the case and is either one-half the duration of the marriage (if the marriage is less than 10 years) or potentially for the life of the spouse paying support or remarriage of the spouse receiving it (if the marriage is 10 years or longer).
Spousal support, like child support, can be modified.
How is spousal support calculated?
If the spousal support is awarded while the divorce case is pending, Orange County judges generally use the same computer program as is used in child support cases (dissomaster or x-spouse) to do the calculation. This is based on the income of the parties as well as certain deductions.
If the spouse support is being awarded at the end of the case, the court is not permitted to rely on any computer program or even consider the amount of the temporary support. Instead, the court must take certain mandatory factors into consideration when deciding the spousal support amount. These are:
- The marketable skills of the person receiving or asking for support; the job market for those skills; the time and expenses required for that person 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.
- The extent to which the present or future earning capacity of the person receiving or asking for support is impaired by periods of unemployment that were incurred during the marriage to permit the supported spouse to devote time to domestic duties. This is common when one spouse is a homemaker and the other worked throughout the marriage.
- The extent to which the person receiving support or asking for support contributed to the attainment of an education, training, a career position, or a license by the person paying for support.
- The ability of the person paying spousal or being asked to pay spousal support to actually pay spousal support, taking into account his or her earning capacity, earned and unearned income, assets, and standard of living.
- The needs of each spouse based on the standard of living established during the marriage.
- The obligations and assets, including the separate property, of each spouse.
- The duration of the marriage. Generally, marriages of less than 10 years are considered short term marriages. Marriages of 10 years or more are long term. Spousal support may be lifetime support (with certain exceptions such as remarriage, etc.) in a long term marriage, while it may be 1/2 of the duration of the marriage in a short term marriage. There are exceptions to these rules.
- The ability of the spouse receiving support or asking for support to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the spouse.
- The age and health of the spouses.
- Documented evidence of any history of domestic violence between the spouses, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported spouse by the supporting spouse, and consideration of any history of violence against the supporting spouse by the supported spouse.
- The immediate and specific tax consequences to each spouse.
- The balance of the hardships to each spouse.
- The goal that the supported spouse shall be self-supporting within a reasonable period of time. The court wants both spouses to work or become employed within a reasonable period of time. This is true even in long term marriages.
What happens if my spouse or I remarry? Does spousal support end?
Yes unless you and your spouse have agreed in writing to continue support even after remarriage.
If my spouse or I move in with a member of the opposite sex, what affect does that have on spousal support?
There is a rebuttable presumption of a decreased need of spousal support if the supported party is cohabitating with a member of the opposite sex. This is not automatic. The court still must have a hearing but generally if a lesser need is shown, then spousal support may be adjusted downward.
How do I modify the current order for spousal support?
You file a formal written request called an order to show cause or motion with the court asking that the judge modify the existing order. You must attach certain mandatory forms with the request including an income and expense declaration and depending on whether your current spousal support award is temporary or a final award, the court will determine if you need to show a change of circumstance to modify it.
What can I do when my spouse refuses to work but my spouse clearly is capable of doing so?
It is not uncommon for a spouse in a divorce case to purposefully not work to force the other to pay more support. When this happens, judges in Orange County will order a vocational evaluation of the non-working spouse. There are two limitations to this: First, the spouse who is challenging the other’s failure to work generally has to bring a formal written motion (request) to the court which asks for a vocational evaluator to be appointed. Second, depending on the income of the parties, the court will generally order the spouse making the request to pay for the vocational evaluator although the court has discretion at the end of the case to order the non-working spouse to reimburse the other if it is found that the non-working spouse was willfully not employed without justification and had the earnings capacity and ability to be gainfully employed.
The court can also make other orders such as ordering the nonworking spouse to submit applications for employment, and make other job search efforts. These can be conditions of receiving support. The court even has the power to terminate spousal support.
Will I have to return to work after being a homemaker all these years?
Not necessarily. That depends on numerous factors including (1) whether you have children and their ages (2) your education and prior work experience (3) the numbers of years you have been out of the job market (4) your age and (5) your general employability.
The reality of divorce is that what was once a one income family has split and that one income is no longer there to provide all of the support it once did. While a court will not force a long time homemaker back into the workforce, the above factors are taken into consideration when determining whether a spouse that has been a homemaker for many years can return to work.