Alimony or spousal support is granted to the financially disadvantaged partner when a marriage legally dissolves. Its purpose is to limit the unfair economic effects of a divorce on the non-wage or lower-wage earning spouse or domestic partner by awarding a monthly stipend. This monthly amount is calculated by examining a combination of factors:
- The length of the marriage or partnership
- Each spouse’s needs based on their standard of living during the marriage or relationship
- What each person pays or can pay, including earnings potential, to maintain the standard of living
- The impact of taking a job on the capacity of the primary caregiving parent to care for children
- The age and health of both partners
- Debts and property
- Whether one partner helped the other to obtain an education or professional license, or promote a career
- Whether there was domestic violence in the relationship
- Whether one partner’s career was impacted by taking on childcare obligations or unemployment
- Tax considerations (until January 2019, alimony payments were tax deductible by the paying spouse and receiving spouses had to pay income tax on spousal support payments. Now alimony payments are not tax deductible and receiving spouses do not pay income tax on their benefits.)
Alimony can be ordered for a limited period of time or indefinitely. For marriages or domestic partnerships under ten years of duration, alimony in California is usually awarded for one-half the life of the relationship. For longer tenured marriages, those over ten years, the court retains jurisdiction over what can be an open-ended financial obligation. Alimony continues until the court:
- Changes the terms,
- Ends the obligation, or
- If the support order has an end date.
Alimony in any circumstance will end if the receiving spouse remarries or registers in another domestic partnership, or dies, and if the paying spouse dies. Alimony payments do not survive the death of the obligated spouse or partner.
What happens when a former spouse or partner doesn’t pay alimony?
Because alimony is awarded through a court proceeding, the obligated spouse can be ordered by the judge who presided over the divorce or dissolution case to return to court to explain why alimony payments have stopped.
Failure to pay alimony has consequences. First, a 10% interest per year on the balance due is added by law to the arrears. Even the judge cannot stop the imposition of these penalties. In addition, a liquidation amount can be added to any spousal support court order that will include an amount over the monthly support amount until the balance is paid. A court can order a wage garnishment where a percentage of salary is removed and paid directly to the receiving spouse. Also, a court can order funds to be removed from an existing bank account or intercept a tax refund check. The ultimate penalty is incarceration.
If the court decides that the obligated spouse or partner has the ability to pay support, but is willfully not paying, the court can hold this person in contempt. The penalty is jail. Although this enforcement tool is not used often, it is used as a penalty of last resort.
What happens if the obligated spouse cannot afford to pay the court-ordered alimony amount?
A change in the obligated spouse’s circumstances can provide the grounds for reexamining the alimony obligation. However, it is improper to just stop paying. The obligated spouse should immediately begin proceedings to obtain an amendment to the alimony order. This is when an experienced attorney is needed to seek a judicial order amending the alimony obligation. “A change in circumstances” might include:
- The receiving spouse or partner no longer needs the financial assistance having found employment, another partner, or with the children out of the house, an ability to find reasonable employment.
- The obligated spouse has a significant decrease in income.
- The receiving spouse is not making a good faith effort to become self-supporting.
Too many times former spouses avoid the inconvenience of returning to court to modify an alimony order. Common reasons for avoiding the hassle of going back to court to modify alimony might include:
- Believing that the job loss or income drop is merely temporary
- Feeling too stressed and worried about other things to bother with alimony arrears
- Being in jail or prison where court filings are difficult
- Spousal support is not a priority
Procrastination in filing a motion to modify an alimony order can be costly. Ordinarily a modification order cannot be issued retroactively, so any arrears that accumulate even after circumstances have changed must be paid and cannot be modified by any subsequent court order. However, on April 20, 2020, in response to the Covid-19 pandemic and economic shutdown, the California Judicial Council issued Emergency Order 13 that allows alimony modification proceedings to be begun by mail, without physically coming to court, and using the mail date as the modification date of any subsequent order.
When experienced counsel is necessary to protect your interests
Whether you are a receiving spouse whose former partner has fallen into arears or an obligated spouse whose circumstances have changed, making alimony payments impossible, you should seek experienced counsel to ensure that your rights and obligations are fully protected. Unfortunately, when relationships fall apart, the emotional fallout often compels former partners into cruel or dishonorable behaviors. Rather than let emotions overwhelm the situation, especially when finances are involved, experienced divorce attorneys can come in and represent your interests in a professional manner. Courts prefer the parties to a divorce to work out the details of spousal support and child custody, so an experienced spousal support attorney can create a dissolution agreement that works specifically for you.
Contact an experienced team of divorce lawyers in California
Giuliano Law provides dedicated divorce counsel to clients in Hollister, Santa Clara, Santa Cruz, Monterey, and San Benito counties. No matter how tough your case may seem, our seasoned divorce lawyers are up for the challenge. To discuss your case with a skilled divorce attorney, call (831) 257-8692 or contact us today.