Who Pays Alimony in Divorce?

Posted by: Gerald A. Maggio, Esq.

Top divorce attorneys in Orange County; The Maggio Law FirmEvery time you hear the word ‘alimony,’ you are probably thinking of a man writing out all of his monthly salaries off to his vengeful ex-wife. It is normally taken to be that way in popular culture. Movies and TV shows often use this as a device for easy comedy. The loser husband going broke every month while the woman in question has an easy life spending all that money. It works as a plot device, but in real life, this is not the case. In fact, in a lot of ways, it can be quite misleading. If you think that alimony is something the man pays his ex-wife by default, you may be wrong.

The standard of living (of the marriage) 

One of the key things that are used to measure what a marriage is worth and how alimony is calculated is the standard of living, in this case, of the marriage. It is also the key to finding out if there will be any alimony at all. Standard of living is an economics concept, and it is used to find out whether the couple would be able to live by themselves, in the same or similar economic standing as they were able to when they got married, after divorce. The law is simple so far. If one person makes all the income and the other is a stay-at-home spouse, then the person who is employed will have to share a part of their income with the non-earning member. If there is no sharing, the earning member will end up with a lot more disposable income than that of the non-earning member whose standard of living will drop drastically. The concept of alimony is designed to protect the standing of the non-earning member.

The courts decide what the alimony amount will be and for how long it will have to be paid. In many cases, it will extend until a specified period, within which the recipient can find their own employment and sustenance.

It is important to remember that apart from extraordinary cases where one member has a sudden spike in income, it is almost impossible to return to the same standard of living levels that the couple enjoyed as a family. That is simply because it is costlier to run two households than it is to run one. The concept of alimony is simply there to make this downgrade as soft as possible.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.   

How is Alimony Calculated?

Posted by: Gerald A. Maggio, Esq.

Top divorce attorneys in Orange County; The Maggio Law FirmWhen a couple files for a divorce and the proceedings have begun, the court may be inclined to award one of the former spouses alimony based on a decision it makes or an agreement that has been reached by the couple.

Alimony or spousal support can be described as a support system that limits the unfair economic effects that a divorce could have on the spouse who is unemployed or earns lesser among the two by paying a continuing income.

One justification for the alimony is that one of the spouses may have decided to step back from a career to support the family and will need time to hone their skills to be able to find a job to support themselves. Another reason behind alimony is to help the recipient continue living with the same standards as they had during the marriage.

How is alimony determined?

Alimony is very different from child support, which is mandated with specific monetary guidelines. Courts have much broader brackets to consider while determining whether alimony should be awarded and how much and for how long should the process run. Courts consider certain factors while deciding on alimony awards. They are:

  • The age, physical and emotional health, and financial status of the former spouses
  • The duration of time the recipient spouse would require to becoming self-sufficient
  • The length of the marriage
  • The spouses’ standard of living during the course of the marriage
  • The ability of the payer spouse to support both the recipient and themselves

With alimony awards, it could be hard to estimate if the payer spouse will follow orders. Unlike child support enforcement which is governed by a several legal mechanisms, alimony is not covered by such umbrellas.

But if the spouse doesn’t pay, the recipient could always go to court and file a contempt proceeding forcing the spouse to make payments. Since a court can award alimony, there are court mechanisms to enforce the alimony award, in case the alimony is withheld.

How long should a spouse be paid alimony?

Under California law, for a marriage under 10 years in duration, the spousal support will last for approximately one-half the duration of the marriage.  For a marriage over 10 years in duration, the court will have continuing jurisdiction over the issue of spousal support with no specific termination date, but can be revisited as circumstances change over time.  If the decree does not mention when the alimony is to end, the payments should continue until the court decides. In most cases, the payments end when the recipient remarries.

Different states have slightly different rules regarding spousal support. If you want to learn more about alimony in Orange County, consult a divorce attorney.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.

What Are The Conditions Related To Spousal Support Post-Divorce?

Posted by: Gerald A. Maggio, Esq.

Divorce attorneys in Orange County; The Maggio Law FirmAlimony (spousal support) is the legal obligation of one person to financially support his or her spouse before or after marital separation or after filing for a divorce. The state family laws will affect the conditions of payment of alimony or spousal support in the United States. Initially, it was always the man who would have to financially support the woman post the divorce but nowadays the U.S. state family courts assess the financial position of both parties before deciding who will pay whom alimony.

Factors affecting alimony in the U.S. 

In the United States, each state varies from the other when it comes to alimony payments. Some states rely solely on the judge’s decision on which spouse will have to pay alimony, the amount payable and how often. Some states award alimony only if the couple was married for 10 years or more and limits the payment of alimony to just 3 years unless there are extenuating circumstances.

In Kansas, alimony will not be payable after 121 months. In Utah, the length of time for paying alimony will not exceed the length of the marriage. In Delaware, alimony will not be awarded to either partner if the marriage term was less than 10 years. In New York, whichever partner has the higher number of educational degrees will be expected to pay alimony to the other as they are expected to earn more income because of their higher education as degrees are considered to be a form of marital property. Sometimes the judges in family courts utilize the expert advice of financial experts and labor economists to help decide who should pay alimony to whom as well as the amount and duration of alimony payment.

Types of Alimony 

In general, there are four types of alimony that apply to all states in the US. They are –

  1. Temporary alimony – also known as ‘pendent lite support’ as it refers to the alimony payable by one partner to the other while the divorce suit is still pending, prior to getting the actual divorce.
  1. Permanent alimony – money payable by the partner earning more income to the financially weaker partner till the death of either partner or remarriage of the payee.
  1. Rehabilitative alimony – alimony payable to the lesser earning spouse till he or she can find a well-paying job and become financially stable.
  1. Reimbursement alimony – alimony paid to one spouse for expenses incurred by him or her during the marriage

The main factors or conditions that affect payment of alimony in the U.S. 

  • Length of the marriage
  • Length of separation while still married but before getting divorced
  • Age and health of both parties at the time of divorce
  • Current income and future income earning capacities of both partners
  • Reason for divorce or breakdown of the marriage (fault vs. no fault divorce states)

Getting divorced in California can be complicated.  To learn more about California divorce and the laws specific to California alimony, download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

How Can Cheating On Your Spouse Affect Alimony?

Posted by: Gerald A. Maggio, Esq.

Orange County divorce attorney; The Maggio Law FirmPeople fall in love, get married, and start families every day. But, unfortunately, marriages fall apart more often than people would like. And one of the biggest reasons behind this is infidelity.

When adultery pushes a marriage to divorce, it becomes a painful experience for everyone involved. Some divorce cases have been known to turn rather nasty and go on for years before settlement.

If you are someone who is on the verge of filing for a divorce because your spouse was unfaithful, there are a few things you need to keep in mind before the papers are drawn. Adultery can affect your divorce and alimony and you need to be aware of how the possible impacts it could have.

How can adultery affect your divorce?

In most states in the United States, adultery can be used as substantial grounds for divorce. But if you live in Orange County, you should know that California is a no-fault divorce state. Here, you can only get a divorce for one of two reasons:

  • Irreconcilable differences between spouses
  • If your spouse has been inflicted with incurable insanity

Many states have deemed adultery as an illegal offense, but California has not, so there are no official state definitions of the act. The courts of California do not consider adultery while deciding the divorce.

How does adultery affect alimony?

During a divorce trial, judges do have some liberty in deciding if alimony has to be awarded, the amount of the alimony as well as the duration. To be entitled to alimony, the receiving spouse should produce evidence of requiring monetary support, and the paying spouse should be capable of paying the amount for that duration of time. Before it has been decided if alimony is necessary, the judge must consider all factors and come to a fair and reasonable decision.

In most cases, judges are not allowed to take marital misconduct into consideration when they are making a decision regarding alimony. The sole purpose of alimony is to ensure that neither of the spouses faces financial troubles once the marriage ends.

Alimony was never intended as a punishment to spouses for bad conduct during the marriage. Since California does not consider adultery as grounds for a divorce, the judges in Orange County and other cities will not base alimony on adultery.

If you are a resident of Orange County and are considering filing for a divorce after your spouse cheated on you, it is recommended that you speak with a family law attorney before your divorce proceedings are set in motion.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.

 

Spousal Support Modifications: How Long Does it Take?

Posted by: Gerald A. Maggio, Esq.

orange county spousal support; The Maggio Law FirmSometimes, long after a divorce settlement has been arrived at, and many months of alimony paid out, there may come a need for changing the amount or terms of the spousal support. But how long does this kind of change take? And what are the things you need to have ready to ensure things move along smoothly?

Time taken for pre-divorce spousal support judgments vs. modifications

Spousal support modification needs you to go through a similar set of processes and steps as the procedure followed for the initial support order/judgment during the divorce. And the reason behind the need to follow the same procedure, is that by suggesting there is a need for changes to the judgment already in place, you or your ex believe that something has changed. In other words, the financial situation or circumstances have deviated quite drastically from the time the divorce came through. Which means that you will need provide proof of the new economic situation on either side, the need for the change, and urgency for such a change.

Unlike the original process which may have taken anywhere from six months to a year, the modification can be a little quicker in some cases. Especially if there was a clause in the original order that required say ‘$1000 to be paid with a review in 5 years’, then the process is smoother and therefore, faster.

Why it takes time

A spousal support modification doesn’t happen overnight. Hard though it might seem, having jumped through hoops the first time around, you can bypass any of the steps for the change. In fact, you will need to ensure you provide adequate cause for modification of the terms, a ‘material change in circumstances’. Even if the initial agreement did not prevent modifications, a judge may show some reluctance to make a change if the spousal support payments had bearing on how the other aspects of the agreement were settled.

In addition, if your ex disputes their income status or expenses, or contests the change, you will need to first make a case or settle the dispute or let a judge decide as your attorneys battle it out in court.

Changing spousal support in emergencies

There are two scenarios where the spousal support modifications may need to be dealt with more urgently. If you are in a tight spot, having lost your job and have alimony payments that are due shortly, be sure to raise this with your attorney so that they do not accumulate as huge arrears due to your ex when you do get a job. If you are the spouse receiving the support, and have a huge change in your situation, medical emergencies or other reasons for needing a fast change to the amount you get, again, you will need to be sure to flag this off upfront, although courts often find financial issues to be non-emergencies if an ex parte request for relief is sought.  Be sure to consult your divorce attorney to fully understand your options.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.

A Quick Guide to Modifying Child Support Payments

Posted by: Gerald A. Maggio, Esq.

Divorce attorneys in Orange County; The Maggio Law Firm, Inc.Whether you’re the spouse paying alimony and child support to your ex, or the one receiving it, there may come a time when you find the numbers you had decided on are no longer feasible and need an update. Here’s a quick guide to how you can modify child support payments – upward or downward, depending on your needs.

Asking for more

At the time of your divorce settlement, you made certain assumptions on likely expenses and how much help you would need from your ex by way of child support. The reality of life after divorce can often be far removed from what you had imagined and you may well find yourself hit with bigger bills and more expenses, especially if you are the primary caregiver for your child. Whether you simply discover that expenses are higher, or whether rising costs or a change of school or after-school activities have seen the cost of bringing up your child go up, you may need to reach out for some help. In some cases, you might find yourself out of work or facing a dip in your business as a consultant or freelancer and need your child support payments to go up.

Dealing with unexpected layoffs or pay cuts

With an economy that’s less than perfect, a lot of businesses are cutting back on raises and promotions. If you’re divorced and find yourself in the unfortunate position of having your pay cut, or are unlucky and find yourself laid off, then there may be an immediate need to modify your child support payments. Failure to do so will result in your missed payments as being marked as arrears that you will need to pay up at a future date. Child support orders cannot be modified retroactively beyond the date that you file for your modification with the court.

How to make changes to the payments

First off, you will need to provide proof of the changed circumstances. If you have lost your job or are drawing a lower income, this is easily proven with necessary documentation. If you have had to cut back on work due to health issues, medical documents backing this up will be needed. For additional expenses, you will need to prove that the added costs are unavoidable or absolutely necessary for the good of your child.

Once you are sure you have the supporting documents ready, file a Request for Order (RFO) with an Income and Expense Declaration (needs vary by state).  Remember, exceptions to this are lump sum alimony payments or property division. These cannot be modified or added to once they are agreed upon.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.

Orange County Spousal Support: All You Need To Know

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyer; The Maggio Law FirmSpousal support, or alimony, is the legal obligation to financially support your spouse following the dissolution of your marriage. The concept of spousal support was created to help the spouse who earns lesser pay or has been unemployed to become self-supporting.

Kinds of spousal support 

If you seek spousal support while your case is in process, it will be known as a “temporary spousal support order.” It will be called “permanent spousal support” if the court case and divorce has been finalized.

Calculating spousal support

In the courts of Orange County, judges refer to the factors listed in the California Family Code to determine how much spousal support is required as they decide the final spousal support order. The factors mentioned include:

  • The duration of the marriage.
  • The standard of living each person maintained while being married and the needs based on that.
  • The amount of money each person can afford to pay to maintain the standard of living while they were married.
  • Property and debts, if any.
  • If there were any instances of domestic violence during the marriage.
  • If one spouse had to quit their career to care for the children or the household.
  • The impact spousal support would have on the payer’s taxes.

The long-term spousal support depends on the duration of the marriage and the goal of the idea is to ensure that the spouse will be able to support themselves after a reasonable amount of time. The judge need not fix an end-date for the spousal support if the duration of the marriage was “long-term,” which is 10 years or longer.

Domestic violence and its impact on spousal support 

If there has been any recorded evidence of domestic violence, the judge will take into consideration these details before the final decision has been made. If the abusive spouse is paying the spousal support, the judge will declare that any distress that was faced by the other spouse due to the violence must also be supported.

Once the court order has been published, the spouse must continue paying the alimony until a change has been declared by the court or until the end-date mentioned in the order. In Orange County and California in general, if you fall behind on your spousal support payments, you will have to pay 10% interest per year on the due balance which is known as “arrearages.” You can also be held “in contempt of court” if you are found to be willfully not paying the alimony.

How To Avoid Crippling Amounts In Spousal Support

Posted by: Gerald A. Maggio, Esq.

Divorce attorneys in Orange County; The Maggio Law FirmAlimony is not an entitlement. Ultimately, it is up to the discretion of the judge to decide on the final amounts so you might find yourself in a position where you do have to pay spousal support, sometimes more than you want to. Income is not the only criteria to decide on alimony or spousal support amounts. This depends on over a dozen factors in most states. As important as income is the spousal need. However, if you have done all your groundwork right and worked with good divorce attorneys and a reliable divorce mediator, you should end up with a fair deal.

Hiring a professional

DIY divorces may seem like a good idea at the time, saving you any outflow on lawyers. A caveat here is that while you could navigate the complicated filing yourself, the next steps aren’t as easy as you would imagine. negotiations are something experienced divorce attorneys are well trained in and extremely good at. They will serve your best interests at the negotiating table and will not let emotions derail the process. Without their counsel and skill, you may actually end up paying more in spousal support the long run and wipe out any savings you might have made during the divorce process.

Get a divorce attorney you can trust

Soldiering on with a divorce attorney or team you don’t think is good enough is not a good idea. If you feel your attorney is not what you expected or is incompetent – switch. Fail to do that and you may end up with a raw deal on spousal support and find yourself bogged down with huge payments. A divorce attorney who doesn’t have your best interests at heart will happily stand by and watch divorce mediation deteriorate waiting for the case to head to courts to rack up big legal bills for you.

Work with a divorce mediator

A divorce mediator will help you work out the gray areas. While basics like rent, food and clothing will be taken care off, it is the ‘extras’ like out of pocket medical expenses that you will need to negotiate on. By deciding on these areas out of court, you are much more in control and have a say in the final agreement. Not to mention the saved legal expenses. If you take your case to court, you will need to leave the decision on alimony to the discretion of the judge and lose that control you have.

Don’t forget about the taxman

There’s a third person in this divorce who is often ignored when working through financials. Be sure to consider all tax implications of whatever arrangement you come to on spousal support.  If you don’t you may find yourself paying crippling amounts of taxes and living off very little even though the actual spousal support amount was what you had agreed on to begin with..

Discuss a time limit or other alimony options

Explore the option of temporary alimony to help you spouse get back into the workforce or stabilize financially. In some cases, a lump sum alimony may be what works better for you – discuss this option with your divorce attorney and financial adviser. Agree on a timeframe for alimony payment even if it is not court mandated.

Think of alternatives

You don’t always need to pay out huge sums in spousal support if you can come to some other agreement,. For instance, your spouse may be okay to accept a lower or temporary alimony if they get to keep the family home.

How Can A Father Get Child Support From A Mother?

Posted by: Gerald A. Maggio, Esq.

best divorce attorneys in Orange County; The Maggio Law FirmWhen couples decide to divorce, there are certain aspects that they need to take into account. One of them is the issue of child support. It is typically believed that child support is paid by the father of the child to the mother to take care of the child and to cover all the expenses that occur in that respect.  However, much like child custody not being limited to a mother, being the greater earning spouse or the spouse that the other depends on financially is not limited to a father when it comes to child support.

Both a mother and a father can be the one earning the cash before the couple got a divorce and hence it is entirely possible for a father to get child support from a mother.

Who Is Entitled To Child Support?

Neither a mother nor a father is guaranteed to receive child support at the outset. Who receives the child support will largely depend on the parent who has the primary custody of the child and the income of the parties. So for a father to be in a position to get child support order in their favor from the family law court, they may need to have primary custody of the child and likely also earn less than the mother.

Getting Primary Custody

The first step in getting child support for a father will need them to get primary custody of the child.  The family law court will decide on the parent who gets to keep the custody of the child and make the important decisions based on the best interest of the child.

Proving That You Lack The Requisite Finances

It is one thing having the ability to give the child the life that is in their best interest and quite another actually providing it. If you were financially dependent on the child’s mother for the running of the household during the time you were married. You will need to prove that to the court. Once the court is satisfied with this notion they will look to an estimate of the child’s expense, your earning if any and the earning of your spouse and their expenses before passing the child support order based on that.

When A Forensic Accountant Is Needed in Divorce Cases

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyers; The Maggio Law FirmEnding a marriage and a lifelong relation is never easy. It involves a number of different complex issues that are often interconnected. People believe that the process of getting a divorce is one that only involves your divorce lawyer and no one else. However, that is not entirely the case. More often than not there are situations where a divorce lawyer will need to take the help of a professional accountant to solve the complexities of the case, etc.

The role of forensic accountants in an Orange County divorce case is often underestimated and few people recognize the importance that they have. Often the first question that is asked when an accountant is called in a divorce case is why you need a forensic accountant in a divorce case.

Why are Forensic Accountants Needed?

  • There are often situations especially in terms of child support determinations where the amount that each of the spouse earns is hard to determine. Often in cases where both the spouses are self employed such a situation may arise. Here the use of forensic accountants will ensure that they do an income analysis to determine the correct amount of child support that needs to be paid.
  • They can also be used by the parent who has been handed a high child support payment. Who can make sure they provide their income analysis to back their claim of an unfairly high child support amount that should be reduced.
  • Similar to child support, even in issues of spousal support it can be hard to determine the correct spousal support payment. Here once again the use of income/cash flow analysis will be made by the forensic accountant to determine the correct amount.
  • For self-employed spouses that own their own business entities, it will be hard for the courts to gauge the valuation of the business and its assets. A forensic accountant knows the appropriate methods used to determine the value of a company and will outline that value to the court.
  • In a number of cases separate property and community property are not kept apart from one another and they are often either mixed together or used side by side. Here, tracing of what and what proportion originates from the community property and what originates from the separate property can require an expert determination from a forensic accountant.
 
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