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S. Kincaid
S. Kincaid, Family Law Attorney
Category: Family Law
Satisfied Customers: 2485
Experience:  I have practiced family law since 1996, focusing on child custody and domestic violence
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I prefer an attorney based in California to answer my question

Customer Question

I prefer an attorney based in California to answer my question please.

Subject - Divorce

Background -

Married for 14 years

The past 3 years I was making between $35,000
to $49,000. My wife has not been working for the past 4 years since the real Estate collapse. She was a realtor. She has refused to look for other work to help pay for our 2 homes which we have since lost.

Question - Alimony.

We separated since July 2011. She moved out of our rented home
and I don't know where she lives now. We comunicated thru email.
Our 2 children are 19 and 22 years old.
Our son is with her and daughter is with me.

We want to keep the attorneys out of this to save

How much Alimony should I pay her and for how long,
and what conditions should i set for her to receive the Alimony?
Submitted: 5 years ago.
Category: Family Law
Expert:  S. Kincaid replied 5 years ago.

Steven Kincaid :

Thank you for allowing me to assist you.

Steven Kincaid :

Although I recently moved out of state, I practiced family law in California for ten years.

Steven Kincaid :

The general, unwritten rule in California is that spousal support, if paid, is paid for half the duration of the marriage.

Steven Kincaid :

Spousal support, however, is not automatic. The Court is required to consider the following factors in deciding whether and how much support to order:

Steven Kincaid :

1. Ability to maintain marital standard of living in light of earning capacities: The extent to which the parties' respective earning capacities are sufficient to maintain the standard of living established during the marriage (Ca Fam § 4320(a)).

2. Contributions to other spouse's education, training, etc.:
The extent to which the supported spouse contributed to the other spouse's attainment of an education, training, career position or license. [Ca Fam § 4320(b)] Section 4320(b) is a companion to Ca Fam § 2641, which creates a right of reimbursement for community contributions to one spouse's education or training that "substantially enhances" the spouse's earning capacity.

3. Supporting spouse's ability to pay: The supporting spouse's ability to pay spousal support, taking into account his or her earning capacity, earned and unearned income, assets, and standard of living. [Ca Fam § 4320(c)]

Note: A spousal support order must be consistent with the supporting spouse's ability to pay as determined by his or her circumstances at the time of the support hearing--i.e., the obligor's present (not past or future) circumstances (current income/cash flow, assets, earning capacity, etc.) control.

4. "Needs" in light of marital standard of living: The needs of each party based on the standard of living established during the marriage. [Ca Fam § 4320(d)] "Need" includes more than "bare necessities of life." But § 4320(d) expressly codifies well-established case law consensus that "need" must also be judged in terms of the parties' station in life during marriage and before separation.

5. Parties' assets and debts: The parties' respective assets and obligations, including the separate property of each. [Ca Fam § 4320(e)] Thus, aspouse's separate estate (including assets allocated to each as a result of the community property division)--and the reasonable income potential therefrom--may require the "withholding" of support altogether or a termination of previously-awarded support. [Ca Fam § 4321(a)]

6. Duration of marriage. [Ca Fam § 4320(f)] The length of the parties' marriage bears both on the "need" for support (whether it should be ordered) and on the amount and duration. The longer a spouse has been out of the job market on account of the marriage, the stronger the case for granting support; by the same token, a relatively short marriage can, depending on the other § 4320 factors and the "totality of the circumstances," offset alleged "need" and justify a lower level of support and/or a shorter support term.

7. Employability of custodial spouse vs. impact on children: The ability of the supported spouse to engage in gainful employment without interfering with the interests of dependent children in his or her custody. [Ca Fam § 4320(g)] Section 4320(g) recognizes the overriding public policy concern for the welfare of the parties' minor children. Theoretically, e.g., weighing all relevant circumstances, the needs of young children may justify indefinite spousal support to a custodial parent even after a relatively short marriage.

8. Age and health of the parties. [Ca Fam § 4320(h)] On balance and after weighing all of the § 4320 factors, age and health may warrant either an extension or withholding of support. Age and health considerations are also particularly relevant to the question of duration of support.

9. History of domestic violence: Documented evidence of any history of domestic violence (as defined in Ca Fam § 6211) between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party. [Ca Fam § 4320(i)]

10. Tax consequences: The immediate and specific tax consequences of spousal support to each party (e.g., who pays the taxes, who gets the deduction, what effect on net income). [Ca Fam § 4320(j)]

11. Relative hardships: "The balance of hardships to each party." [Ca Fam § 4320(k)] This factor seems to underscore the court's obligation to consider and weigh all of the § 4320 circumstances in determining the appropriate amount and duration of spousal support.

12. Goal of self-support: "The goal that the supported party shall be self-supporting within a reasonable period of time." [Ca Fam § 4320(l) (e)] Except in marriages of long duration (as described in Ca Fam § 4336, a "reasonable period of time" within which to achieve the goal of self-support "generally shall be one-half the length of the marriage." [Ca Fam § 4320(l)]

13. Spousal abuse conviction (mandatory factor for support reduction/termination): The criminal conviction of an abusive spouse is a mandatory factor to be considered in making a reduction or termination of spousal support in accordance with Ca Fam § 4325. [Ca Fam § 4320(m)]

14. Other "just and equitable" factors: "Any other factors the court determines are just and equitable." [Ca Fam § 4320(n)] This final factor is a "catch-all," clarifying the court's authority to consider any other circumstances, although not expressly codified, bearing on the propriety of awarding support and, if so, its amount and duration.

Steven Kincaid :

Given the facts you provide, it is not clear to me that you necessarily should be paying spousal support. Paying support could prevent you from maintaining your own standard of living. Also, since you have been separated for a year without your paying support, there is no "marital standard of income" for your ex to maintain. On the other hand, your spouse has been out of the job market for four years which indicates some support may be appropriate.

Steven Kincaid :

It is impossible to tell you how much support should be paid because there is no formula throughout most of the state. Usually, if you go before ten different judges, you will get ten different spousal support orders because there is so little guidance in the law. The exception is that a handful of counties have set up formulas for determining spousal support.

Steven Kincaid :

Some counties have adopted a TEMPORARY spousal support guideline called the “Santa Clara Guideline” formula for use in temporary spousal support. The guideline states that the paying spouse’s support be 40% of his or her net monthly income, reduced by one-half of the receiving spouse’s net monthly income. This cannot be used for spousal support ordered at the time of the divorce though as the 14 above factors must be used instead.

Steven Kincaid :

Is there any other information I can provide for you?

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