Courts Decide Temporary And Permanent Alimony Amounts Differently
Q: My spouse filed for divorce. We were married for 14 months. Will my alimony amount be based upon my income now or when we married? I make a lot more now.
A: There is a difference between temporary spousal support and permanent spousal support. Temporary spousal support is alimony paid during the course of the divorce proceeding. Permanent spousal support is alimony paid on the judgment of divorce.
The income amount used to determine temporary support would be generally be based on what you are earning at the time the petition of dissolution, the divorce papers, are filed. The issue of when you separated can have a profound influence on your case as far as alimony. For example, if you stopped living together after nine months and the divorce was filed after 14 months you would argue the date of separation is the nine month date.
The Superior Courts of Orange and Los Angeles Counties have adopted an spousal support guideline (spousal support is what judges and lawyers call alimony) for use in setting temporary spousal support with which Los Angeles Divorce Attorneys and Orange County Divorce Attorney are familiar. This guideline provides that the high earner’s support is to be 40% of his/her net monthly income, reduced by one-half of the low earner’s net monthly income. Where child support is being paid, the guideline level of child support is first calculated. Then spousal support is determined.
The rule of thumb on permanent alimony is that the higher earner pays alimony, lawyers call it spousal support, equal to half the length of the marriage in short duration marriages. A short duration marriage is one of less than 10 years.
When you have a marriage of short duration, and the parties have been separated for longer than the actual marriage, or well in excess of half the duration of the marriage, then the courts are not inclined to grant any spousal support. It’s important to note that the judge cannot rely on any guideline used in temporary support when ordering permanent spousal support. Instead he must rely on the factors set out in Family Code Section 4320. Section 4320 states that in ordering spousal support the court shall consider the extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following…it then lists a lot of factors. Read Family Code Section 4320 here. That go into the decision.
If temporary alimony is a factor you need to ask for it using a written application to the court called a Request for Orders. This is a complicated procedure best handled by an experienced divorce lawyer. Similarly, if the parties cannot agree on a permanent alimony amount then the issue will go to trial before a family law court judge, and you will need a divorce lawyer who has experience trying cases concerning Family Code Section 3420 factors to ensure you obtain the best result.