Spousal Support (Alimony) FAQ

Spousal support, also called alimony or spousal maintenance, is a court-ordered payment from one spouse to the other during or after divorce. Under California Family Code Section 4320, spousal support is designed to help the lower-earning spouse maintain a standard of living similar to what was established during the marriage and to provide financial support while that spouse becomes self-supporting.

Unlike child support which follows guideline formulas, spousal support is highly discretionary and based on numerous factors including the length of marriage, each party's earning capacity, age, health, and the marital standard of living.

California recognizes two main types of spousal support: temporary spousal support (pendente lite) which is ordered during the divorce proceedings, and permanent spousal support which is ordered as part of the final divorce judgment. The term "permanent" is somewhat misleading as this support can be modified and often has a defined duration, particularly for shorter marriages.

Temporary spousal support is support ordered during the pendency of the divorce case, from the date of filing until the judgment is entered. Under California Family Code Section 3600, temporary support is typically calculated using a computer program (like DissoMaster or XSpouse) that applies a guideline formula based primarily on the parties' incomes and tax considerations. The formula typically results in the higher-earning spouse paying 30-40% of the difference in incomes to the lower-earning spouse.

Permanent spousal support is ordered as part of the final divorce judgment and takes effect after the divorce is finalized. Despite its name, permanent support is not necessarily permanent and can be modified based on changed circumstances or terminated upon specific events like remarriage or death.

Permanent support is determined under Family Code Section 4320 by considering numerous statutory factors including the length of the marriage, each party's earning capacity, age, health, contributions to the other's education, and the marital standard of living. Permanent support amounts are typically lower than temporary support amounts because the Section 4320 analysis considers more factors and often contemplates the supported spouse becoming self-supporting over time.

California Family Code Section 4320 lists specific factors the court must consider when ordering permanent spousal support. These mandatory factors provide the framework for the court's discretionary decision and include considerations of both parties' circumstances and the marriage itself.

The factors include: the extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage; the marketable skills of the supported party and the job market for those skills; whether the supported party's earning capacity is impaired by unemployment during marriage for domestic duties; the extent the supported party contributed to the other's education or career; the ability of the supporting party to pay; the needs of each party based on the marital standard of living; the assets and debts of each party; the duration of the marriage; the ability of the supported party to work without interfering with children's interests; the age and health of the parties; documented history of domestic violence; tax consequences to each party; the balance of hardships; and the goal that the supported party shall be self-supporting within a reasonable period of time.

The court must consider all factors and make findings on the record. No single factor is determinative, and the court weighs all factors together to reach a fair support amount and duration.

The duration of spousal support in California depends primarily on the length of the marriage. For marriages of short duration (generally less than 10 years from marriage to separation), the court typically orders support for one-half the length of the marriage, though this is a guideline rather than a strict rule and the court has discretion to order a longer or shorter period based on the circumstances.

For marriages of long duration (10 years or more from marriage to separation), the court retains jurisdiction indefinitely unless the parties agree otherwise under California Family Code Section 4336, meaning support can continue for an extended period and there is no automatic termination date. However, even in long-term marriages, the expectation is that the supported spouse should become self-supporting within a reasonable period of time.

Spousal support automatically terminates upon the death of either party or the remarriage of the supported spouse under Family Code Section 4337. Support can also be terminated or modified based on a material change in circumstances, and can end if the supported spouse is cohabiting with a non-marital partner in a relationship resembling marriage. Parties can agree to a specific duration and make support non-modifiable in their settlement agreement.

Yes, spousal support can be modified after the divorce is final if there has been a material change in circumstances under California Family Code Sections 4320 and 3651. A material change in circumstances must be substantial and must have occurred after the last support order was made. Minor or temporary changes are typically not sufficient to warrant modification.

Common examples of material changes include: a significant change in either party's income (increase or decrease), loss of employment or change in employment status, retirement of the supporting spouse, disability or serious illness affecting either party, increased earning capacity of the supported spouse through education or training, significant changes in the cost of living, or other substantial changes affecting either party's ability to pay or need for support.

The party seeking modification must file a motion with the court and demonstrate that circumstances have changed substantially since the last support order. However, parties can agree to make spousal support non-modifiable as to amount, duration, or both in their settlement agreement, and courts will generally honor such agreements. Additionally, if the supporting spouse voluntarily reduces their income in bad faith to avoid support obligations, the court may impute income based on their earning capacity rather than actual earnings.

Under California Family Code Section 4337, spousal support automatically terminates upon the remarriage of the supported spouse - no court order is required, and termination is immediate. This is one of the few automatic terminations in family law. If you are receiving spousal support and remarry, you must notify your former spouse, and the support obligation ends on the date of remarriage. The supporting spouse is not required to file any motion or obtain a court order; remarriage automatically ends the obligation.

Cohabitation (living with a non-marital partner) does not automatically terminate spousal support, but it can be grounds for modification or termination under Family Code Section 4323. The supporting spouse can request that the court reduce or terminate support based on cohabitation if they can show that the supported spouse is cohabiting with a person of the opposite sex in a relationship resembling marriage and that this affects the supported spouse's financial needs.

Relevant factors for evaluating cohabitation include whether the couple holds themselves out as married or in a committed relationship, the duration and continuity of the relationship, sharing of expenses and financial intermingling, whether they share living quarters, and the level of commitment and permanency. The supporting spouse bears the burden of proving both the cohabitation relationship and its effect on the supported spouse's need for support. Courts look at the totality of circumstances rather than any single factor.

Unlike child support, there is no statewide guideline formula for permanent spousal support in California. For temporary support during divorce proceedings, courts typically use computer programs like DissoMaster or XSpouse that apply a formula based on each party's gross income, with typical ranges of 30-40% of the difference in the parties' incomes after accounting for taxes and mandatory deductions.

However, for permanent spousal support ordered in the final judgment, the court must consider all factors listed in California Family Code Section 4320 and has broad discretion in determining the appropriate amount. The analysis begins with examining the marital standard of living and determining what income is needed to maintain that standard. The court then evaluates each spouse's ability to pay and need for support, considering their respective incomes, assets, earning capacity, age, health, and other Section 4320 factors.

There is no mathematical formula for permanent support, and the court must balance all relevant factors based on the specific facts of each case. County practices and individual judges may have different approaches. Both parties should provide detailed income and expense declarations showing their monthly needs and ability to pay. Expert testimony regarding earning capacity, standard of living, or vocational assessment may be necessary in complex cases involving disputes about a party's ability to work or appropriate support levels.

The tax treatment of spousal support changed significantly under federal law. For divorce or separation agreements executed before January 1, 2019, spousal support payments are tax-deductible by the paying spouse and taxable income to the receiving spouse under the previous federal tax law governed by Internal Revenue Code Section 71 and 215 as they existed before the Tax Cuts and Jobs Act.

However, for divorce or separation agreements executed on or after January 1, 2019, spousal support is no longer tax-deductible for the paying spouse and is not taxable income to the receiving spouse under the Tax Cuts and Jobs Act. This represents a major change in how spousal support affects the parties' tax situations and shifts the tax burden entirely to the paying spouse.

This federal tax change significantly impacts spousal support calculations and negotiations, as the tax benefit that previously made support more affordable for the paying spouse no longer exists for newer cases. California state tax law generally follows federal treatment. The change in tax treatment is one factor the court may consider under Family Code Section 4320(n) when determining appropriate support amounts. Parties should consult with tax professionals and family law attorneys to understand how support will affect their specific tax situations and overall financial planning.

Failure to pay court-ordered spousal support is a serious matter with significant legal and financial consequences. Spousal support is a court order, and non-payment can result in contempt of court proceedings under California Family Code Sections 290-293, which can result in fines and even jail time in extreme cases.

Available remedies for unpaid spousal support include: wage garnishment or income withholding orders under Family Code Section 5230 which require the supporting spouse's employer to deduct support directly from paychecks; liens against real property and other assets; seizure or levy of bank accounts; interception of tax refunds (state and federal); suspension of driver's licenses, professional licenses, and recreational licenses under Family Code Section 4903; and reporting to credit bureaus which damages credit scores and can affect the ability to obtain loans or credit.

Unpaid support accrues interest at 10% per year under Family Code Section 4909, which can cause the debt to grow substantially over time. The court can also order the delinquent spouse to pay the other party's attorney's fees incurred in enforcing the support order. Unlike child support arrears which cannot be discharged, spousal support arrears can sometimes be discharged in bankruptcy in certain circumstances. If you cannot afford to pay support, you must file a modification request immediately rather than simply stopping payment, as arrears continue to accrue until modified by court order.

Yes, spouses can agree to waive spousal support in California, either through a prenuptial agreement before marriage, a postnuptial agreement during marriage, or a marital settlement agreement during divorce. Under California Family Code Section 1615, a waiver of spousal support in a premarital or postmarital agreement is valid and enforceable if the agreement meets certain requirements.

These requirements include: voluntary execution by both parties without fraud, coercion, or duress; full disclosure of assets and obligations (or a voluntary waiver of disclosure in writing); opportunity for independent legal counsel (or a voluntary and express waiver of such counsel in writing); and the agreement must not be unconscionable at the time of enforcement. Courts generally enforce spousal support waivers in settlement agreements reached during divorce proceedings as long as both parties entered into the agreement voluntarily and with full knowledge of their rights.

A waiver of spousal support should be in writing and explicitly state that each party waives any right to receive spousal support from the other, both now and in the future. The waiver should be clear and unambiguous. Once a valid waiver is executed and incorporated into the divorce judgment, it is generally binding and cannot be later modified or set aside except in cases of fraud, duress, or extreme unconscionability. Parties should consult with independent attorneys before waiving spousal support to fully understand the long-term implications and ensure the waiver is enforceable.