Can Adultery Affect Alimony Under California Law?

Posted by: Gerald A. Maggio, Esq.

Spousal support Orange County; California Divorce MediatorsCalifornia has a no-fault divorce law 

California was the first state in the 1970s to implement the concept of no-fault. This means that you can file for a divorce in two possible cases. Either, you state that your marriage has irretrievably broken down or your spousal partner is incurably insane. You won’t need to specify the exact details or prove them in court. Both partners also don’t need to arrive at a consensus regarding the common grounds for divorce. It is enough that one partner wants to end it.

Infidelity or adultery hasn’t been defined by law but most agree that when one partner has a sexual liaison with his/her lover without the consent of his spouse, he has committed a grave indiscretion. However, it can’t be a ground for divorce alone.

However, infidelity can have some impact on the alimony that the dependent or the poorer spouse can demand. Since California is a community property state, whatever property is acquired by the couple during the period of marriage, will be equally distributed among the partners. Both have equal rights, except on properties acquired through inheritance or received as a gift.

Hence, if the wronged partner can prove that the cheating partner has spent a certain portion of the joint income on his/her lover, a judge can accept the submission and order him/her to reimburse the amount that was spent on the other person, to his spouse.

Infidelity is not a punishable offense in California 

California courts can’t order a partner to pay a certain sum of money as compensation to the wronged partner because of his/her misconduct because that would mean that the court is punishing him/her for the “offense”. The soul ground for the alimony or the spousal support would be the financial need of the wronged or financially weaker partner. The court would try to ascertain that the spouse gets enough support so as to reasonably maintain his/her lifestyle that they had during the marriage. They may also look at the ability of the spouse to support themselves and their employability. The ability of the paying spouse to support would also be analyzed and brought under the scanner.

However, if the receiving spouse starts dating or cohabiting another person before the divorce is finalized, then according to Section 4343 of the California Family Code, the court may reduce or altogether withdraw the alimony as it sees that the financial dependency has decreased.

Frequent adultery or cheating may, however, have an impact on the custody rights of a person and may be a ground that leads him to lose his rights to keep his/her child.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

What Are Men’s Rights to Spousal Support in California?

Posted by: Gerald A. Maggio, Esq.

Spousal support Orange County; California Divorce MediatorsSociety and the courts have traditionally always favored women in cases of divorce settlement. It is usually the woman who claims alimony from her spouse post-divorce. But in reality, this is not a fair method of determining who has to pay spousal support to whom. In a relationship the woman may be in a better financial position than the man and in such cases the woman may be be required to pay alimony to her ex-husband.

Men’s rights regarding alimony in California and factors considered while determining alimony amount

The divorce and spousal support laws in California are fair and unbiased and focuses on the financial position and strength of each spouse and not the gender of each spouse. California laws take into consideration the net assets and liabilities or debts of both spouses before determining who has to pay alimony and the amount payable.

Husbands who are getting divorced in the State of California enjoy full rights granted by the law to receive alimony or spousal support from the other party. Some factors that determine the amount of alimony that the husband will get from his wife are the husband’s income from his current job, his income earning capacity, his health and lifestyle, his nature towards his wife during the marriage – whether there were any signs of physical, mental or emotional abuse or domestic violence. All these factors are taken into consideration by the civil court before calculating the alimony payable by the wife to the husband and to make sure that the spousal support terms and conditions are fair, just and equitable.

Husbands also have the right to receive temporary or interim spousal support from their wives if they can prove their poor financial situation. The judge will consider factors such as the husband’s debts, income, and expenses, as well as the current financial burden on their wife and determine an alimony amount which the wife will have to pay to her husband throughout the course of the divorce proceedings to financially support and take care of him.

Short-term spousal support

If the marriage has lasted less than 10 years then the husband can claim short-term spousal support from his wife if he can prove his financial needs to the judge or family court. The same factors are taken into consideration in determining alimony.

Long-term spousal support

A marriage that has lasted more than 10 years is considered to be a long-term marriage in the state of California and hence the husband can claim a larger spousal support amount from the wife after a divorce. Again, the judge takes the same factors into consideration before determining the amount of spousal support payable to the husband.

The husband also has the right to enter into a mutual stipulation or agreement with his wife for the amount of spousal support payable without the interference of the court. But this is only if the husband and wife are still on good terms after the divorce and can cooperate and negotiate with each other by themselves or with the help of legal representatives without the need of external interference by the courts.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

Understanding Termination of Alimony in California

Posted by: Gerald A. Maggio, Esq.

Orange County spousal support; California Divorce MediatorsTermination of alimony for the spouse paying it means financial freedom. But requests for termination of alimony have to be pleaded in California Family Courts and are only granted after going through evidence and persuasive arguments. Requests by the paying spouse for terminating alimony are very common in divorce cases.

Short term marriages

Termination of alimony in short term marriages is extremely common and the process is quite simple. Generally speaking, the period of paying alimony in a short term marriage is half the length of the marriage. The shorter the marriage, the shorter is the period for which you have to pay alimony. But the exact duration will be determined by the court. The alimony agreement should clearly state the duration and the date of termination of the alimony.

Long term marriages

Termination of alimony in long term marriages can be quite difficult. If the court wishes, it can terminate the payment of alimony if the marriage has lasted for almost 10 years or more. But the spouse receiving the alimony always has the right to contest such a decision. If the court has decided to terminate the alimony after a certain date, the contesting spouse should approach the court before the said date and appeal for a continuation of the alimony.

In marriages that have been for a much longer duration than 10 years, alimony can still be terminated in certain cases. If the court is produced with persuasive arguments and evidences, it can terminate the payment of alimony. You need to prove that your spouse can maintain their lifestyle and standard of living on their own even after you stop paying alimony. It can prove to be quite difficult.

The court will take a close look to determine that the supported spouse can support themselves financially in every possible way. You will need to show that your spouse has gained a significant amount as income through employment of some kind. The court will make a decision based on the nature and extent of employment and not the income of your spouse.

If your spouse has gained a significant amount in inheritance or has obtained a separate estate, alimony will, in most likelihood, be terminated. But again, the court will determine if the estate guarantees that the spouse will have enough financial support without the alimony. Termination of alimony is not that simple and is granted after much consideration.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

Temporary Spousal Support in California

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation attorneys; California Divorce MediatorsThe issue of spousal support can result in bitter contests in a divorce. The spouse having a higher income would not want to pay it and the spouse with a lower income or no income will insist on receiving it. In California Family Code, alimony is known as spousal support.

Temporary spousal support can be paid by one spouse to the other when their divorce case has been filed but a ruling is still pending. The amount to be paid should be sufficient to support the other spouse completely till a divorce is granted and the final amount of alimony is determined. The ability of one spouse to pay the amount of temporary alimony is also taken into consideration.

Purpose of temporary alimony

According to California spousal support laws, temporary spousal support is generally paid to maintain the status quo of the spouse. But this can prove to be quite difficult financially for the spouse paying the support. Temporary alimony is paid twice every month – on the first and 15th of every month.

To make matters a little bit easier, the court takes into consideration the net disposable income of each spouse. They then look at the unnecessary expenditures that each spouse can cut back on. The court will advise the alimony paying spouse to pay only for the essential needs of the requesting spouse and not for everything else.

Calculating temporary alimony

The amount of temporary alimony to be paid is determined the same way as child support.  If child support is being paid, the amount of alimony will be less and vice versa. The court uses the software programs X-spouse or Dissomaster or something similar to calculate the amount of temporary alimony to be paid.

The court will consider the income of the past one year of both the spouses before calculating the amount to be paid in temporary alimony. But this is not true for everyone. If any one or both the spouses are self employed, the court will go longer back than that. But the court will, most likely, never consider a period of income shorter than one year.

California alimony procedures and laws need to be considered carefully before filing for a divorce. You should get in touch with an experienced attorney for consultation.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

Challenges in Determining Spousal Support

Posted by: Gerald A. Maggio, Esq.

Orange County spousal support; California Divorce MediatorsThe California Family Court uses computer software programs when determining temporary alimony. But when a final decision on the alimony is to be reached, it cannot use these programs any longer. The court then follows California Family Code 4320. It also has to take into consideration a number of factors before making a final decision on the alimony or spousal support to be paid.

The standard of living analysis of a spouse seeking alimony is done by following the sections mentioned in Family Code 4320. Even then, the court has to face quite a few challenges because each case is different from the other.

Standard of living beyond the financial means

If the spouses were used to maintaining a lifestyle that goes well beyond their income, it becomes quite difficult for the court to determine how their standard of living can be maintained. The court could ask the paying spouse to liquidate the assets for paying the alimony. But this could mean putting the payer in debt. So the court would not want to do something like this.

Frugal lifestyle

If the spouses led a very economic lifestyle during their marriage, it becomes quite difficult for the court to determine if they will continue to do so after the divorce. In such a situation, the court will try to determine the amount of alimony in such a way that savings can be made even after the essential expenditures.

Incomplete evidence 

The courts, more often than not, have to face significant challenges in determining alimony because neither of the spouses has provided complete and correct evidences of their incomes and expenditures. Skilful practitioners of family law can help spouses to not make such errors and save the court valuable time.

Time period of long term marriages

Determining alimony in long term marriages is quite difficult. The standard of living and the lifestyle lived changes throughout a long term marriage. Incomes and expenditures change over time. There is no way of determining what the standard of living would be after the divorce. But generally, the court takes into consideration the last 5 years of the marriage.

If you are someone going to file for a divorce, you should consider the issue of alimony whether you are going to pay it or seek it. All decisions should be made after consulting a professional attorney with proven experience in California family law.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

Understanding Alimony in California

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation attorneys; California Divorce MediatorsAlimony is referred to as “Spousal Support” in California.  When a divorce is under process, the court might require that the partner with the higher income has to pay the other partner a certain amount so that they can cope with their current lifestyle.

The duration of alimony

Spousal support is usually paid for a predetermined period of time. It could be spread over a period of time or paid in full during a one time payment. The duration of the support period usually depends on the length of the marriage. If the marriage has lasted over 10 years, then the court most probably will not set a specific termination date for the support to end and both partners can request modification or termination of support at later hearings.  These days, judges don’t order permanent support even for long term marriages, although it is sometimes referred to as permanent support by attorneys.

How is spousal support calculated?

In California, the court can request for spousal support for any amount, after taking the needs of the other partner into consideration. The aim of spousal support is to maintain the financial status that was present during the marriage while also making the supported spouse independent. Certain courts have their own formulas for calculating the support amount. If the supported spouse has dependent children then child support will be in addition to the spousal support payments.

Before deciding the amount of the payments, courts usually take various factors into consideration. These include the dependent spouse’s current financial status, his/her ability to get and hold a job, the current job market, support required for the dependent spouse to get a vocational education or improve existing skills in order to get a stable job. Other factors like age, health and legal issues like domestic violence during the course of the marriage are also considered.

For periodical payments, the recipient is taxed for the payment while the sender can list it as tax-deductibles. Spouses can also have predetermined agreements to make sure that the tax scenario is beneficial for both parties.

Termination or Modification

If the spouses have a pre-written agreement not to modify the spousal support terms, then they are required to follow the terms. Otherwise, either partner can request for changes or termination of support. If either of the divorcees die or if the supported spouse gets remarried, then the spousal support will end.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

Does Adultery Have An Effect on California Divorce Cases?

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediator; California Divorce MediatorsThe institution of marriage is one based on trust and loyalty. When these emotions are diluted with adultery, you find the marriage ending in divorce. It is a painful experience for the parties involved and can get quite messy if not dealt with properly. You can avoid the name-calling and finger-pointing if you are aware of legal procedures involving divorce because of adultery.

In the U.S., you have a divorce procedure called ‘no-fault divorce’. The proceedings do not require the spouse filing the divorce to testify why the other spouse is at fault for the breakdown of the marriage. Adultery is illegal in many states but it isn’t so in California. Thus, the legal definition of adultery is still up for interpretation. However, there is a general agreement that adultery occurs when one partner engages in a sexual relationship outside marriage.

When you are filing for divorce, you need not mention why the marriage failed or who was responsible. You only have to state that the marriage is broken beyond repair and separation is your best solution. If the reason for divorce is adultery, it is better to consult a family law attorney who can help you settle other matters involved in the divorce.

Alimony or spousal support is an important consideration in a divorce, especially if you are the dependent. An alimony order can be issued while the divorce is still being processed. The spouse receiving it can also request for temporary alimony which will be in place till the matter settles. The final order will nullify the temporary order.

You have to understand the granting of alimony is at the discretion of the judge. The judge will be the one to decide if alimony is necessary or there is enough evidence to support awarding the alimony. The total duration of the marriage is also a factor in determining the amount you receive. The shorter your marriage, lower the alimony. In addition, the judge has to weigh in on the needs of the receiving spouse and the capability of the paying spouse for alimony to be granted. The ruling should be fair so there isn’t a huge difference in each spouse’s standard of living.

Alimony isn’t punishment or compensation. It is meant to provide monetary stability for the dependent spouse even after a divorce.

It is best to resolve your marital differences amicably, especially if there are children or other dependents involved. This will ensure your relationship does not affect them negatively and you are able to move on without any bitterness towards one another.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

How Life Insurance Can be A Guarantee In Your Divorce Settlement

Posted by: Gerald A. Maggio, Esq.

orange county divorce mediators; California Divorce MediatorsIf you are going through a contentious divorce process, then be sure to build in all the safeties you can to secure your hard-won settlement. Here’s how life insurance could hold the key to some of your concerns around the divorce settlement and your financial future.

Why you need a fail-safe guarantee

For someone who is a dependent spouse, relying on the alimony payment from a now-estranged spouse can be a nerve racking experience. This is made even more daunting when old age creeps up on you, or if your ex has a host of health problems or lives on the edge. Even without all these risks, the loss of your estranged ex will mean that your alimony payments stop completely with no one to make them. Often, after a divorce, couples will revise their wills to exclude the ex from inheriting their estate – whether it is property or other assets. There is however, one way to ensure you don’t find yourself in a spot when a spouse passes on.

Life insurance and how it can help

If you do not earn an income, and are totally dependent on the money that comes in as alimony, you may find yourself with no money in the bank when your ex dies. Life insurance can help give you a payout on their passing which will see you through.

Term insurance vs. whole life policy

A term policy covers the life of the insured individual – your ex – for a fixed duration of years. If your divorce settlement agreement dictates that payments will be made as child support until the kids are of a certain age, then it makes sense to have a term policy that runs for that duration only so you pay lower premiums. A whole life policy also has an investment component with some returns on the premium paid besides the death benefit.

Who pays?

Many couples have life insurance policies when they are married, but after divorce the earning spouse may choose to stop making these payments. If they were the holder of the policy, they could even change the beneficiary. It is therefore important, as a dependent to be the holder of the policy and to ensure payments are made. You could work out so that premium payments are made by your spouse even if you are the holder, but in many cases the earning partner may not agree, especially if they are to make alimony payments. In such cases, it is well worth cutting the premium out of your own alimony received to keep up a policy or to take out a new life insurance policy on them. Think of it as an investment in your own future and financial security.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation.

Determining Alimony During Divorce Mediation

Posted by: Gerald A. Maggio, Esq.

divorce mediation attorneys in Orange County; California Divorce MediatorsIn a marriage, there is always one spouse that is more involved with running the house while the other is earning a major part of the income to cater to the needs of the family. Both spouses may also often be working alongside, yet one of them will have a higher earning capacity than the other. This is why alimony payments, also known as spousal support, is so important in an Orange County divorce. It is meant to provide financial stability to the lower earning spouse once the relation ends.

Even in Orange County divorce mediation, this has an important role to play.  Here is the approach that Orange County divorce mediators should take in alimony discussions between spouses.

·        Identify whether they have reached an agreement on it or not

Sometimes, spouses coming for mediation have already decided a number of issues amongst themselves. They merely use the platform of mediation to formalize what was discussed. If the spouses in front of you have decided on how the alimony payments will be made, then your job in this regard is almost complete. All you need to check is whether the payments are to be made yearly or monthly. If however, the agreement has not been reached, you need to encourage the parties to do so and highlight the importance of the process to them in the mean time.

·        How long will the alimony be payable?

The intricacies of a divorce resolution must be known to the divorce mediator. They should ask questions and allow the spouses to fill in the gaps. For example, putting no limit on the alimony payment will be a disadvantage for the spouse making the payment. There are a number of alimony termination options as well which can be placed in the contract.

·        Is one party in need of alimony and can the other party pay?

The most important question in alimony payments is quantifying the amount that the other spouse needs. On top of that, some spouses will also seek advice from the divorce mediator on whether or not the spouse seeking alimony deserves it. Yet, in all this, the mediator needs to keep in mind the fact that theirs is a role of facilitation only. The decisions need to be taken by the spouse and the mediator cannot give their opinion which may affect the decision.

To learn more about the divorce process in California and how mediation can help, please visit our page, “What is Divorce Mediation.”