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How to avoid paying alimony in an amount beyond the marital standard of living

With experienced representation, the spouse with the alimony exposure should calculate alimony consistent with the marital standard of living.

A mistake we sometimes see the higher earner spouse make is to base alimony on his or her higher, current income when that income is not consistent with the marital standard of living.

A spouse who expects to receive alimony is generally not entitled to alimony based on increases in income after separation.

For example, if the most amount of money the spouse who pays alimony received during the marriage per year was $150,000 and now he or she earns $250,000, is it reasonable for the other spouse to receive alimony on that additional amount? The answer in most instances is no.

However, the paying spouse should be diligent ahead of time and before he or she agrees to a court order or goes to trial to properly present or consider these issues in the agreement or to the court. That way, whether by settlement or through a formal hearing, alimony has a reasonable cap or ceiling.

How the marital standard living may apply to your situation is not black or white. Once again, to get answers for your specific situation requires a private consultation with an experienced family law attorney and representation.

How to avoid paying alimony when the supported spouse refuses to work

If the spouse who wants alimony has the ability, capacity and opportunity to be gainfully employed but refuses to work or is willfully underemployed, one option is a vocational examination.

A vocational examiner, once ordered, can evaluate the spouse's earning ability, capacity and opportunity and let the court know if the spouse should and can earn an income. If the examiner sets that number (usually a range if one is set) and if the court agrees with the vocational examiner's assessment, the court may even impute income to the spouse if the spouse refuses to work.

It is of course much more complicated than what we wrote here. Family Code section 4331 controls vocational examinations.

Vocational examinations do cost money. Typically, the spouse who requests the examination pays for the examiner.

To learn more about vocational examinations, please read our article on vocational examinations in California.

How to avoid paying alimony when the supported spouse does not have a "need"

You may be wondering, what do you mean does not have a "need?" How does a spouse prove that?

There are many scenarios this can come up but one common one deals with independent wealth separate from marital funds.

If the alimony seeking spouse has an inheritance as one example or otherwise has access to money he or she can use to pay for his or her expenses, that spouse may have a lesser need for alimony.

This may be true even though the other spouse was the breadwinner during the marriage and has the ability to pay alimony.

In addition, third parties, such as parents as one example, may pay the alimony seeking spouse's expenses. This payment, when recurring, triggers the question whether that spouse has a reduced need for alimony, even if that spouse is not employed.

Family Code section 4320 requires the court to consider many relevant circumstances

The court must do this when it evaluates alimony amount and duration. A spouse should not assume that analysis begins and ends with income.

We have another California Family Code section that partially addresses this issue. Family Code section 4321(a) states:

In a judgment of dissolution of marriage or legal separation of the parties, the court may deny support to a party out of the separate property of the other party in any of the following circumstances:

(a) The party has separate property, or is earning the party's own livelihood, or there is community property or quasi-community property sufficient to give the party proper support…

This is section (a). We discuss section (b), below.

How to avoid paying alimony when the high-earner spouse has sole child custody

Family Code section 4321(b) states:

In a judgment of dissolution of marriage or legal separation of the parties, the court may deny support to a party out of the separate property of the other party in any of the following circumstances: …

(b) The custody of the children has been awarded to the other party, who is supporting them.

Remember we discussed Family Code 4321(a), above? Well, now you have section (b).

The reasoning behind this code section should be obvious. If a spouse and parent has sole custody of the child or children, he or she has significant responsibility for their day-to-day care and payment of expenses. This may significantly impact that spouse's ability to pay alimony.

How to avoid paying alimony when the alimony-seeking spouse is cohabiting

Family Code section 4323 states:

(a)(1) Except as otherwise agreed to by the parties in writing, there is a rebuttable presumption, affecting the burden of proof, of decreased need for alimony if the supported party is cohabiting with a nonmarital partner. Upon a determination that circumstances have changed, the court may modify or terminate the alimony as provided for in Chapter 6 (commencing with Section 3650) of Part 1.

(2) Holding oneself out to be the spouse of the person with whom one is cohabiting is not necessary to constitute cohabitation as the term is used in this subdivision.

(b) The income of a supporting spouse's subsequent spouse or nonmarital partner shall not be considered when determining or modifying alimony.

(c) Nothing in this section precludes later modification or termination of alimony on proof of change of circumstances.

This is important. Pay attention to it. If your spouse is cohabiting with a non-marital partner, he or she is presumed to have a reduced need. Ignore this at your own risk. Read our guide on cohabitation and alimony in California.

We hope this article on how to avoid paying alimony was helpful

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It is all about knowing the facts and the law before agreeing to alimony or taking the issue to court. What we wrote here are only a few important considerations on this topic. It is not practical to cover every scenario here.

An experienced family law attorney in a private consultation can advise you of your options specific to your case.

Ready to talk? We are ready to help. Contact our California family law firm to discuss your alimony situation. We have offices in Los Angeles, Orange County and San Diego and serve all of Southern California.