Despite the predictions, or hopes, from many pundits, the wave of alimony reform that swept over several states in recent years seems to have lost momentum before it crashed ashore in California.
In 2011, Massachusetts became one of the first states to change its spousal support laws by limiting permanent alimony. New Jersey lawmakers adopted a similar provision shortly thereafter, empowering groups in many other states, including California. But earlier this year, similar efforts in South Carolina and Florida fell short; in fact, the Sunshine State’s governor, Rick Scott, has vetoed two alimony reform bills in the last several years. Even though new legislative sessions are beginning in each of these states, reformers may not be back for Round Two, or Round Three in Florida. Here in California, serious spousal support reform has drawn little attention since a brief flurry of activity in 2015.
Each state’s experience has differed to an extent, but there is a common denominator. Some people see spousal support as a way to permanently balance the standard of living between the two ex-spouses, while others view alimony as a means to an end, that end being financial self-sufficiency. California’s spousal support scheme embraces both viewpoints, and that may be why reform has gained so little traction in the Golden State.
Types of Alimony
As part of this divided purpose, California courts award several types of alimony. Essentially, the Family Code presumes that most couples have a “breadwinning” spouse and a “caretaker” spouse, even if these roles overlap, and they nearly always do. So, to ensure that the “caretaker” spouses have their needs met, judges may order:
- Temporary Alimony: Immediately after the divorce, caretaker spouses sometimes find themselves with unanticipated expenses to meet, such as attorneys’ fees, rental deposits, daycare deposits, and other immediate costs. To meet these expenses, some judges order temporary support that lasts until the marriage is officially dissolved; typically, the judge uses a mathematical formula to determine the amount.
- Rehabilitative: Some caretaker/obligee spouses need to invest time and money to become economically self-sufficient, and rehabilitative alimony basically gives them these resources. Rehabilitative alimony can make up the difference in monthly living expenses, and also help pay school tuition, job training, and other self-sufficiency costs.
- Reimbursement: If the costs are immediately ascertainable, and the obligee/caretaker spouse has some financial resources, many judges prefer this form of rehabilitative alimony. The obligee/caretaker pays the costs in advance, and the obligor/breadwinner reimburses those expenses. Some judges expand the concept of financial resources to include borrowing from relatives and other sources besides regular income.
- Permanent: This label is inaccurate, because even these payments do not last forever. However, some judges will award such long-term alimony if it appears that the obligee/caretaker spouse can either never become self-sufficient or can never attain a standard of living somewhat comparable to the one that existed during the marriage.
- Lump Sum: Some judges order or approve cash payments to equalize the property division.
If self-sufficiency is an issue, and it nearly always is, the 10-year rule comes into effect. According to Hossein Berenji, a divorce lawyer in Los Angeles, “California law presumes that, if the marriage lasted fewer than ten years, the obligee/caretaker spouse can become self-sufficient in half that time.” Therefore, if the spouses were married eight years, spousal support will last a maximum four years.
Factors in Awarding Alimony
In almost all situations other than temporary alimony, the court looks at the factors in Family Code 4320 to determine the amount and duration of payments. These factors include:
- Length of the Marriage: As mentioned earlier, alimony payments are capped if the marriage lasted fewer than 10 years, and in longer marriages, judges are more willing to consider equalization alimony.
- Earning Capacity: The court will consider not only the future earning capacity of each spouse based on education, age, experience and other factors, but also whether this capacity is affected, either positively or negatively, by the spouse’s prior employment history.
- Noneconomic Contributions: In family court, time is about as valuable as money, so if the caretaker/obligee spouse eschewed career advancement to care for minor children, such contributions are considered.
- Property Settlement: If spouses received separate property in the divorce settlement, such awards could offset alimony payments, at least to an extent.
- Obligor’s Ability to Pay: Some people claim that alimony is little more than a penalty on the higher-earning spouse, but ability to pay is only one factor out of many.
Other factors include the relative age and health of the parties (a factor that is tied to earning capacity), any history of domestic violence, and “Any other factors the court determines are just and equitable.”
Typically, the amount and duration of payments can be modified, if any of these factors change materially or substantially. Death always ends spousal support payments, retirement usually terminates a spousal support obligation, and an obligee/caretaker spouse’s long-term romantic relationship, even if vows are not exchanged, usually terminates payments as well.