A court order for alimony creates a financial obligation between spouses after divorce or legal separation. California law does not limit alimony to divorce cases. A legally separated couple might still have a court order for spousal support, even when the marriage has not legally ended through divorce. Whether one party needs to pay alimony to the other depends on court orders and the California Family Code.
Legal Significance of Legal Separation
Some couples decide on legal separation because they have religious or personal reasons to avoid divorce. Under California law, legal separation and divorce differ in only a few ways. Most significantly, legal separation doesn't free the spouses to remarry. Although legal separation does not have the legal significance of divorce, a spouse filing for a legal separation may request many types of court orders that are also generally included during divorce. The related court orders might involve legal issues such as child custody or support, alimony, property division and assigned responsibility for marital debts. Choosing legal separation rather than divorce does not eliminate a spouse's right to request alimony.
Request for Alimony Order
In California, a spouse with a pending case for legal separation or divorce may request temporary orders to establish each spouse's rights until the court finalizes the legal issues between the two parties. Either spouse may request an order for temporary alimony. As part of the spouses' finalized legal separation, they might need to negotiate ongoing support. If the spouses can agree on the terms of spousal support, they can ask the court to approve a written agreement to establish alimony. Participation in mediation or alternative dispute resolution may help the parties to discuss alimony without a need for lengthy trial proceedings. When the spouses can't agree on whether one of them will pay alimony, however, the court must follow California law to determine the appropriateness of support given the couple's financial circumstances.
California's Statutory Factors
The California Family Code establishes alimony factors in section 4320. When spouses ask a court to issue an order for spousal support after their legal separation, the judge must consider the statutory factors. Section 4320 includes factors such as the couple's standard of living during their marriage, each spouse's earning capacity and marketable skills, each spouse's non-employment contributions to the household or time away from the workforce, each spouse's health and age, each spouse's separate property and other factors that may affect each spouse's financial future. The section also allows the court to consider the duration of the couple's marriage before legal separation.
Change to Alimony Order
After the court has finalized the spouses' legal separation, the party ordered to pay alimony must continue to do so until the end of the period specified by the court order. As legal separation does not allow either party to remarry, alimony can't automatically end due to the payee's remarriage. California law does permit the payor-spouse to request a modification of the existing order for spousal support. The spouse requesting the change must show the court that at least one of the parties has experienced a significant change in circumstances. For example, the spouse paying support might request a lower payment due to job loss or ask the court to end alimony due to the payee-spouse's improved financial circumstances. Until permitted to end alimony by court order, however, the individual paying support must continue to do so or risk having to pay interest on past-due support.
- California Courts: Options to End Marriage or Domestic Partnership
- California Courts: Spousal/Partner Support
- California Courts: Spousal/Partner Support FAQs
- California Courts: Changing a Spousal/Partner Support Order
- FindLaw. "Spousal Support (Alimony) Basics," Accessed Oct. 3, 2019.
- IRS. "Topic No. 452 Alimony," Accessed Oct. 3, 2019.
- Nolo. "Alimony: What Do I Need to Know Before Divorce?" Accessed Oct. 3, 2019.
- IRS. "Alimony, Child Support, Court Awards, Damages 1," Accessed Oct. 3, 2019.
- IRS. "Dependents 6," Accessed Oct. 3, 2019.
- FindLaw. "Child Support Basics," Accessed Oct. 3, 2019.
Cindy Chung is a California-based professional writer. She writes for various websites on legal topics and other areas of interest. She holds a B.A. in education and a Juris Doctor.