California Divorce Alimony - 5 Facts You Need to Know

Warning--I am a California divorce attorney, so the information in this article is only about California divorce alimony. If you are looking for information on alimony for any other state, this article may not apply to you.

Before I get started, you should know that in the California legal system, alimony is called spousal support. But to accommodate common usage, I will use the two terms interchangeably.

This article will discuss the following five facts that affect California divorce alimony:
1) support priorities,
2) earning abilities,
3) new mate income,
4) mandatory wage assignment, and
5) jurisdiction.

Support priorities. In California, child support has priority over spousal/partner support. So if you have minor children and alimony is an issue in your divorce, it will be considered by the court only after children have been adequately provided for and will be based on the finances of the parties after child support has been accommodated.

Earning ability. As per Family Law Code Section 4320, California divorce alimony is normally based on actual current income. However, if the court finds that a spouse has voluntarily reduced his or her income when employment at a higher level is available, then support can be based on that spouse's ability to earn. Occasional overtime and bonuses can be included in earnings if likely to continue in the future, but excessive overtime beyond a reasonable work schedule should not be included.

New mate income. According to California law in the Family Code Section 4323 for spousal support, you can't consider income or expenses of a payor's new mate to figure the amount of alimony, but if the recipient has a live-in mate, it can be presumed there is decreased need for support, at least to the extent expenses are reduced.

For tax purposes only: California divorce alimony is based on actual taxes paid, so if a party files taxes jointly with a new mate, the new mate's income and deductions have to be included in order to figure the correct amount of taxes attributable to the payor.

Mandatory wage assignment. Every order for California divorce alimony must include an order assigning the wages of the paying spouse to the recipient spouse. Where there's spousal support alone, no child support, use California divorce form number FL-435, Earnings Assignment Order For Spousal Support. Once the order is served on the payor's employer, all or part of the support payments will automatically be deducted from wages by the employer. The wage assignment can be stayed by court order, but not easily.

However, it is entirely up to the recipient when the wage assignment order is actually served (if ever) on the employer. This means that the parties can agree in writing that the order will not be served on the payor's employer so long as payments are current.

Jurisdiction. To make an enforceable order for the payment of money, the court needs "personal jurisdiction" over the person ordered. Do you have this in your case? According to California law, to make an enforceable order against a person, the court must have power (personal jurisdiction) over that person.

This can get complicated, but what it comes down to is this: if you want your spouse to pay California divorce alimony, the court's power to make that kind of order will be most clear if your spouse is either served divorce papers in person inside the State of California and you used California divorce form number FL-115 (Proof of Service), or your spouse signs the Appearance and Waiver form (California family law form FL-130).

If neither of those methods of giving notice is possible, the enforcement of personal orders depends on whether or not your spouse had sufficient "minimum contacts" with California. If you can't serve your spouse as described, you will need to get legal advice for California divorce alimony.