When a couple legally separates or divorces, the court may order 1 spouse or domestic partner to pay the other a certain amount of support money each month. This is called “spousal support” for married couples and “partner support” in domestic partnerships. It is sometimes also called “alimony.”
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In order for spousal or partner support to be legally established and officially start, there must be a court case.
A spouse or domestic partner can ask the judge to make a spousal or partner support order as part of 1 of these types of cases:
You can ask for spousal or partner support to be paid while your case is going on. This is called a “temporary spousal support order” or a “temporary partner support order.” Support can also be ordered once the divorce or legal separation becomes final, as part of the final divorce or separation judgment. When it is ordered once the case becomes final, it is called “permanent (or long-term) spousal or partner support.”
Find out how to ask for spousal or partner support in one of these types of court cases.
For temporary spousal or partner support, judges in many local courts generally use a formula to calculate the amount. Courts in different counties may use slightly different factors in calculating temporary support. Your court’s local rules should explain how temporary support is calculated in your county. Check your court’s local rules for the temporary support guideline.
The judge will not use a formula to figure out how much spousal or partner support to order at the end of your case. When the judge makes his or her final spousal or partner support order, the judge must consider the factors in California Family Code section 4320.
These factors include:
The spousal or partner support order then becomes part of your final divorce or legal separation judgment.
Earning capacity and the standard of living during the marriage or partnership
A judge must consider what each spouse or partner can earn to keep a standard of living close to what they each had during the marriage or partnership.
To do this, the judge looks at the:
Length of the marriage or domestic partnership
The duration of a permanent or long-term spousal or partner support order is closely related to the length of the marriage or domestic partnership. The goal of spousal or partner support is that the spouse or partner getting support will be able to support himself or herself within a reasonable period of time.
The law says that, in general, a “reasonable period of time” may be one-half the length of the marriage/partnership. BUT the law also says that the judge has discretion (power) to make a different decision given the specific circumstances of the case.
There is an important exception. When a marriage or partnership is considered a “long-term” marriage or partnership (usually 10 years or more), the judge may not set an end date to the spousal or partner support.
The length of the marriage or domestic partnership is generally from the date of the marriage to the date of the separation. Because the date of separation can have very important consequences when it comes to deciding spousal or partner support, the parties in a divorce or separation case may not be able to agree on a date of separation, and the judge may have to decide what that date will be. Also, the judge can take into account the periods of separation during the marriage/partnership in deciding if the marriage/partnership is of long duration.
Domestic violence and spousal or partner support
When deciding spousal or partner support, the judge must take into account documented evidence of any history of domestic violence between the parties.
When the spouse or partner that would pay the support is the abusive person, the judge will consider any emotional distress resulting from the violence suffered by the spouse or partner to be supported.
The judge will also consider any history of violence at the hands of the spouse or partner to be supported against the person that would pay the support. And there is a rebuttable presumption against giving spousal or partner support to an abusive spouse or partner who has a criminal conviction for domestic violence against the other spouse or partner.
Once a court orders 1 spouse or partner to pay support to the other, it becomes a court order that must be followed until the court changes or ends it, or, if the support order has an end date, until then.
If you have to pay spousal or partner support and fall behind in your payments, you must pay 10% interest per year on the balance due. Interest charges are added by law, and the judge cannot stop them.
If you owe arrears (past-due spousal or partner support), it is possible that your court order, or wage assignment (garnishment) if there is one, will include an amount over the monthly spousal or partner support. This amount goes toward paying off your arrears, and it is often called a “liquidation amount.” But even if you are paying off your arrears in installments, interest continues to be added to your balance.
Not paying the spousal or partner support the court ordered you to pay can have very serious consequences. If the court finds that you have the ability to pay support but are willfully not paying it, the court can decide that you are “in contempt of court.” Being in contempt of court can be very serious because you can be sent to jail. This enforcement tool is generally used only when all others have failed.
If you are the spouse or partner getting support, you may be able to get help collecting on your support order. If the local child support agency (LCSA) is currently helping you collect (enforce) a child support order for a child you have with your spouse or domestic partner, the LCSA can help you collect (enforce) the spousal/partner support order along with the child support order. If the LCSA has not helped you yet but you do have a child support order as well as a spousal/partner support order, you can ask them to open an enforcement case on your behalf and help you collect both types of support.
Learn more about the local child support agency and find the local child support agency in your county.
Depending on the situation, either spouse or domestic partner might need to change the amount of spousal or partner support that is paid. To ask for a change in the support amount, there needs to be a “change in circumstances.” This means something significant has changed since the spousal or partner support order was made.
Maybe the spouse or partner that was getting support no longer needs it; or the person paying support has had a significant drop in income and can no longer afford the amount of support. Sometimes, the spouse/partner getting support is not making a good faith effort to become self-supporting, so the paying spouse/partner can ask the court to end or change the support order based on this.
Get more information and step-by-step instructions on changing a spousal or partner support order. And take a look at Spousal or Partner Support Declaration Attachment (Form FL-157). This form can be used to ask the court for spousal or partner support, or to ask for a change in the order, and it can help you see what factors the judge will consider when deciding whether to change the amount of support.
IMPORTANT! If you are the person paying spousal or partner support, you will still owe the full amount of support in your current court order until you get the order changed — even if your situation has changed. So, for example, if you lose your job today but you do not change your spousal or partner support order until 3 months from now, you will still owe spousal or partner support from today until 3 months from now, even though you were not working. Also, if you owe that amount but are unable to pay it, you will owe interest (at the rate of 10% per year) on any unpaid balance.
Spousal and domestic partner support usually ends when:
Usually, spousal support is tax deductible for the paying spouse and taxable income for the supported spouse.
If you have a valid same-sex marriage, talk to a lawyer for advice. Same-sex marriages, even if legal in some states, are not recognized by federal law, so spousal support from a divorce of a same-sex marriage may be treated differently for tax purposes.
The law is more complicated when it comes to partner support. Federal and state tax laws were not changed to recognize domestic partners. These laws can be very complicated, and it is important to talk with a lawyer or accountant who is knowledgeable in this area and about income, property, and other taxes.
Spouses or domestic partners can agree to a spousal or partner support order. By agreeing and signing a written agreement (a stipulation), they do not have to go in front of a judge and leave the decision up to him or her.
Writing up a spousal or partner support agreement
Spouses or domestic partners can agree to a spousal or partner support amount, but it will not become a court order until the judge accepts your agreement and signs it as an order.
The family law facilitator in your court can help you work out a spousal or partner support agreement and write it up.
To write up a spousal or partner support agreement:
Make sure you use the right case number for your agreement, which will be the case number of your divorce or legal separation case.