Divorce and Spousal Support in California

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Whether it was the last straw, mutual agreement, or not your decision, going through a divorce is emotionally taxing, physically draining, and legally complex. You may be overwhelmed by immediate problems and worries about the future. In addition, you encounter financial disruption, stressful situations, and difficult choices. As an attorney, I'm here to guide you through property division and spousal support, as well as child custody and support, with a compassionate, clear strategy built around California’s marriage and custody system.

Family Court: A Court of Equity

In California, divorce proceedings are held in Family Court. Family Court is a court of equity, which means the judge has considerable discretion in formulating a judgment that unwinds the marital partnership in a way that divides the assets and liabilities as fairly as possible. That is not to say courts are permitted to act on a whim; judicial discretion is guided and confined by statutes and case law. Some factors cannot be considered by the court, and other factors are required to be taken into consideration. When property division or spousal support disputes come up during divorce, an attorney's role is to provide the court evidence supporting the factors that lead to the client receiving their fair share.

No-Fault Divorce

California is a "no-fault" divorce state. This means courts do not consider why parties are divorcing. In fact, there are only two grounds for divorce in California: permanent legal incapacity and irreconcilable differences. That's it. There is no requirement to show infidelity, abuse, or any other bad act. If any one party alleges permanent legal incapacity or irreconcilable differences, the divorce will move forward. There is no requirement that both parties consent to divorcing in California.

Marital Property

California is a community property state. Generally, this means all assets and liabilities acquired during marriage belong equally to both spouses. What each spouse owned or owed prior to marriage is that spouse's separate property. Any gifts or inheritance either spouse received at any time, even during marriage, is also that spouse's separate property. Separate property does not automatically become community property, and community property does not automatically become separate property. Each spouse keeps their separate property when dividing property during a divorce, and community property is divided evenly. There are numerous exceptions to this general framework.

Transmutations

It is not uncommon for disputes to arise during divorce about whether certain property is characterized as "separate" or "community" property, especially when the property has significant value. After all, it is divided evenly if it is characterized as community property, whereas characterizing it as separate property results in one spouse keeping the entire property. A "transmutation" is a legal term describing the change of community property to separate property, or the change of separate property to community property. A valid transmutation must be in writing and clearly state the intent to change the character of the property. Unlike typical contracts, a transmutation does not require anything of value in exchange for the transmutation.

Student Loans

When payments are made on one spouse's student loans during marriage, the community is entitled to reimbursement for those payments. However, the reimbursement can be reduced, or even eliminated, if the community has substantially benefited from the education. The party seeking reimbursement has the burden of proof, unless the payments were less than 10 years before commencement of the divorce proceedings.

Home Purchases and Improvements

If a spouse used their separate property to purchase the family home, or for home improvements, that spouse is entitled to be reimbursed for their investment during divorce. This is not automatic. The spouse who made the contribution must provide evidence showing that the funds used were actually separate property, and not community property.

Pensions

In California, pensions are typically divided in the same manner that other property is divided. This means pensions earned during marriage are considered community property and are evenly divided. Calculating pension splits becomes complex fairly quickly, especially when part of the pension was earned prior to marriage or after marriage. Some federal pensions are strictly held to be separate property due to federal preemption, and are therefore not subject to division during divorce.

Temporary Spousal Support

Temporary spousal support can be ordered when a divorce is pending. The purpose of temporary spousal support is to ensure the lower-earning spouse has the financial stability needed to make their way through the divorce process. It will only last during the divorce proceedings, and terminates when the divorce is finalized. In determining whether to allow temporary spousal support, courts will consider financial need and ability to pay.

In determining the amount of temporary spousal support to award, many judges use a guideline formula as a starting point. A common formula is 40% of the higher-earning spouse's net income, less 50% of the lower-earning spouse's net income. For example: Spouse A makes $10,000 per month after taxes, and Spouse B makes $3,000 per month after taxes. 40% of Spouse A's income is $4,000, and 50% of Spouse B's income is $1,500. The starting point for temporary spousal support is that Spouse A should pay Spouse B $2,500 per month ($4,000 - $1,500).

It's important to note that this formula is not law, and judges cannot base their temporary spousal support rulings solely on a guideline formula. A judge will consider debt, childcare, assets (e.g., stocks, savings, etc.) and the overall financial status and situation of the parties before determining how much, if any, temporary spousal support to order.

Long-Term Spousal Support

Long-term spousal support, sometimes referred to as "alimony" or "permanent support" orders, are issued at the end of divorce proceedings. The purpose of long-term spousal support is to provide the recipient with the income they need to cover their own reasonable needs in the context of the standard of living achieved during the marriage. Some factors that go into determining spousal support include the duration of the marriage, the possible earning power of each spouse, and the sacrifices a lower-earning spouse made to support the higher-earning spouse's career during the marriage.

A marriage of 10 years or more is considered one of long duration. Except in the case of a marriage of long duration, spouses should be self-supporting within one-half the length of the marriage. For a marriage of long duration, there is no specific guideline for how long support should last. The court does not have to require the spouse to become self-supporting at all, but generally will set a reasonable period of time based on the unique circumstances involved.

Spousal Support Modifications

Long-term spousal support is not set in stone. If there are material and substantial changes in circumstances, the spousal support order can be modified. Further, long-term spousal support terminates automatically if the recipient remarries. When the receiving spouse begins cohabitating with a romantic partner, there is a rebuttable presumption of decreased need for spousal support. In any of these situations, it is important to speak with an attorney to see if the changed circumstances warrant a request for order to modify spousal support.

Additional Topics

This page briefly highlights some of the more common issues that come up during divorce. You may also want to read about child custody and support if those topics are relevant to your situation.

Assistance

Contact me today if you are going through a divorce, or are considering a divorce. I'm here to provide knowledgeable, caring, and effective legal representation to individuals throughout Calaveras, Amador, and Tuolumne counties.