Why Some Alimony Rulings Are Hard to Predict for Clients

The one issue in family law where the judge has the most discretion is spousal support (aka alimony). This discretion, however, is not unfettered. The court is still bound by certain guidelines and must consider certain factors. In ordering spousal support, the court must take the following factors into consideration, while trying to allow each side to maintain the standard of living they enjoyed while they were married (difficult in most scenarios, as the finite amount of money has to pay for two households now):

  1. Marketable skills of the supported spouse;
  2. The extent to which supported spouse's earning were impaired by taking care of the household instead of working during marriage;
  3. The extent to which supported spouse contributed to the education of the supporting spouse;
  4. The ability of supporting party to pay, including his income, ability, and assets;
  5. The needs of each party based on standard of living enjoyed during marriage;
  6. Obligations and assets of each party, including their separate property;
  7. The duration of marriage;
  8. The ability of the supported party to work without interfering with the interests of the dependent children being taken care of;
  9. The age and health of the parties;
  10. Domestic violence against the supported spouse;
  11. Tax consequences to each party;
  12. Balance of hardships to each party;
  13. The goal that the supported spouse will be self-supporting within a "reasonable time;"
  14. The criminal conviction of an abusive spouse; and
  15. Any other factor the court deems relevant.

While these factors must be considered by the court in making any post-judgment "permanent" spousal support orders, the court may use guidelines for temporary spousal support. Which guidelines the court will uses is dependent on which court you appear in (Riverside County, for example, uses Santa Clara guidelines, while some other counties may use Alameda or other formulas). And though they need not use the above factors for "temporary" (or pre-judgment) support orders, they often do.

By the same token, while they are not supposed to use the guidelines for "permanent" orders, they often do (but they claim they do it mostly as a "check" or to look at the orders' "tax consequences."

The Difference Between Judicial Officers

Since there are all these factors to consider, as well as the "permanent" versus "temporary" distinction, the orders from judicial officers can very quite a bit. Some may be more understanding and be willing to give supported spouses more time to become self-supporting, while others may be more inclined to make a finding that the supported spouse has had "reasonable" time and has failed to become self-supporting. Depending on which judicial officer you are going to get, the knowledge of local attorney and his relationship to the local bench becomes of paramount importance. Additionally, as I have written before, with many courtrooms not having court reporters available at all times, in case of an adverse ruling, we have to make sure the case is properly set up and the issues adequately preserved for an appeal.

Many people think that 10 years is a magic, absolute number when it comes to spousal support. Or that cohabitation with a member of opposite sex means termination of spousal support. Neither is 100% true. These are presumptions that come into play; for example, marriage of more than 10 years is presumed to be of long duration and cohabitation creates a presumption that less spousal support is necessary.

You want an attorney who has enough foresight to get you an order that, like playing chess, thinks 3 steps ahead, anticipates various contingencies, and includes them in your orders (especially if by stipulation). You also need a good litigator who can represent you properly before a judicial officer he or she is familiar with, knowing the officer's likes and dislikes--thus getting you the best ruling possible.

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