Timing Your Divorce Right: The Ten-Year Rule

Posted by: Gerald A. Maggio, Esq.

Top divorce attorneys in Orange County; The Maggio Law FirmUnder California law, the lower-earning spouse getting a divorce may be entitled to spousal support for a longer term if he/she has been married to their current partner for ten years or more.  If they have been married for less than ten years, spousal support is generally limited to a duration that is equal to half the length of the marriage.

Sounds a tad confusing? Let us illustrate it with the help of an example.

A and B are going through tough times and considering a divorce. A is the higher-earning spouse here, so it is A who is expected to pay alimony to B.

  • If they have been married for, say 7 years, A needs to pay alimony to B for 3.5 years (three years and six months).
  • If they have been married to each other for 11 years, A’s support obligation will not automatically terminate after half the length of the marriage.

In real life, Mel B (of Spice Girls fame) filed for divorce from producer Stephen Belafonte just short of their 10th anniversary. They would have completed ten years on June 6, 2017. She likely did this to avoid having to pay Belafonte ongoing spousal support with no specified termination date.

Actor Tom Cruise also mentioned in his divorce filing that his marriage to Nicole Kidman lasted only nine years and eleven months. It is believed that he did so for the same reason.

So if you are considering a divorce, ask yourself: How long have you been married to your present spouse?

If you expect to receive alimony, perhaps it would be a good idea to wait until your 10th wedding anniversary. That is assuming you haven’t celebrated it already. Who knows, you just might be able to put your differences aside and enjoy true marital bliss if you wait it out. You might not even want a divorce by then.

If you are the higher-earning spouse and will be expected to pay alimony, don’t wait until your 10th wedding anniversary if you are truly unhappy in your marriage and divorce seems inevitable. The sooner you get out, the better – you will end up paying lesser as support.

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.  

Concepts About Terminating Spousal Support

Posted by: Gerald A. Maggio, Esq.

Divorce attorneys in Orange County; The Maggio Law FirmTerminating spousal support is a big issue. The party that is receiving the support wants to be supported for as long as possible and the party that is paying for the support wants to end it as quickly as possible.  There are reasons for ending spousal support, such as:

  • The person getting the support may no longer need it as they are self-sufficient
  • The person paying the support might not be able to afford to pay for it any longer
  • The person getting the support is making no efforts to be self-sufficient
  • The person getting the support has remarried

How to terminate spousal support?

The first step to terminating spousal support is to assess the living conditions of both the parties and the length and flexibility of the support. The attorney should then find out if the court order has a Gavron warning attached to it. A Gavron warning is a warning issued by the court that requires the person receiving the support to become self-sufficient within a reasonable amount of time.

For marriages that last less than 10 years, that reasonable amount of time for payment of spousal support is usually half of the length of the marriage. Marriages that are longer than 10 years have a different set of rules to follow. A point to be noted is that there is no such thing as a lifetime support. According to California Family Code Section 4320, the spouse who’s getting supported should become self-sufficient within a reasonable amount of time.

After assessing the spouse who’s getting supported for the steps that he/she is taking to become self-sufficient, the attorney will build a case to bring it to the court. If the spouse getting supported has increased earnings, the attorney can argue to reduce the alimony and possibly reduce it or terminate it if possible. If the ex-spouse hasn’t started working yet, a vocational examination can be done to determine the ex-spouse’s ability to work. These methods can be effectively used to reduce the alimony to an eventual zero.

Also, Family Code §4322 can be used as a potential argument to terminate spousal support if the ex-spouse:

  • has no children
  • has or acquired a separate estate from inheritance that earns income
  • has income from employment

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.  

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.

 

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.

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 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.

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.  

Strategies To Reduce Spousal Support After Divorce

Posted by: Gerald A. Maggio, Esq.

Divorce attorneys in Orange County; The Maggio Law FirmWhen couples go through a divorce, one of the two spouses that are dependent on the other financially is awarded spousal support. The concept behind spousal support is to ensure that the standard of living experienced during the marriage is maintained to a reasonable extent post-divorce.

Is the court order at the time of divorce the final order, fixed for life and set in stone or are there some ways that a person can look to reduce the spousal support that is awarded to the other spouse? The answer is that yes, spousal support can be reduced.

The first step is to understand and analyze the spousal support order

If you are planning to go to court and apply for a modification request, you first need to read and understand the spousal support order. You cannot simply go to court with a modification request on the original spousal support order not knowing what it is and hope that the courts rule in your favor.  Take a look at the support order, analyze it and check what if any provisions for modification (or non-modifiability) are outlined in the order.

The second step is to analyze the change of circumstances of your spouse since the last order

One of the most important reasons for a modification or reduction in spousal support is largely dependent upon the changing circumstances of spousal support. Changing circumstances simply means how the current condition of the spouse is different from when the spousal support was ordered. There are many types of such changes. Some of the most common ones are:

  • You income having fallen below the level that it was when the spousal support was ordered
  • There has been a significant increase in the income of your ex-spouse who is receiving spousal support
  • Your ex-spouse has started to cohabitate with another member of the opposite sex

The last step is proving your claim through evidence

The first and the second step come down to how well you perform in this step. Once you have identified having had a change of circumstances and analyzed what the order asked you to do and what not to do. What you need to see is whether your grounds of circumstances are actually true. This needs to be shown through proper documents which can include financial documents and testimony.

What to Do If Your Ex-Spouse Refuses to Work?

Posted by: Gerald A. Maggio, Esq.

orange county divorce lawyers; The Maggio Law FirmIf you are going through a divorce, you would normally expect cases that involve self-employed spouses to be simple.  In reality though, they rarely are anything but simple. Irrespective of the order that is made by the judge in such an issues, there are accusations flying left right and center that the idle spouse refuses to work or has a higher ability to earn than what they are currently on.

From Experience

This is one issue that has been dealt with in detail in cases of family law. From our experience, we can tell you that these situations occur in cases of high net and middle income divorce cases where spousal support can be considerably high.

The common conception amongst parties taking part in a divorce case is that the courts are concerned with only the income of the spouses before making the spousal support order. This however is not necessarily the case. In cases where there are accusations of the spouse being able to work and not working, the courts have the discretion of looking at the earning capacity of the spouse. The words “earning capacity” not only means the amount that the spouse actually uses, it also highlights the amount that a spouse is capable of earning based on his or her education, skill set, and work experience.  In such cases it must be understood that there is a broad discretion available to the courts.

The Opportunity and Ability to Earn

In divorce cases, the judge will often calculate the earning capacity by taking a number of factors into account. They will typically take a look at the employment record of the spouse, their age, health and education in doing so. The onus of showing that the other spouse can earn more than they currently do will rest on the spouse that is making the accusations.  It is often beneficial and worth the money to seek a vocational evaluation of the supported spouse in order to help determine their qualifications and available positions in the area that the supported spouse lives, because proving qualifications is one thing but it is also necessary to prove that there are available positions for the supported spouse out there.

If the other spouse is able to prove to the court that the other spouse can indeed warn more than they do, the family court can use their discretion to impute their income accordingly.

 
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