How to Ask a Judge for Alimony

One of the most common questions when spouses file for divorce is: “do I get spousal support?” or “do I have to pay spousal support?” In California, at least, this is not always an easy question to answer. California employs a factor balancing test: judges consider a laundry list of different factors and then carefully weigh whether granting spousal support would be fairer than not granting spousal support.

alimonyWhat Factors Determine Alimony?

Although the list of alimony factors is miles long, they generally emphasize two different values: equality and self-sufficiency. Since marriage today is viewed as a partnership, courts want to make sure that each party is walking away with half of what the partnership created. Traditionally, the partnerships worked by having husbands serve as breadwinners while wives maintained the homestead. That’s not as common today, but the idea remains the same: the partner that takes care of the home is entitled to his or her contributions to the partnership, even if the contributions were not paid by a third party.

California expects that after a married couple separates, both parties will eventually become self-sufficient, independent of one another and able to survive without the other. If the marriage ends, then logically the partnership should also end. Ordering one spouse to financially support the other spouse undermines self-sufficiency, but that’s why self-sufficiency is a limiting factor when a judge considers alimony.

How Does the Judge Weigh the Factors?

So how would a judge go about reconciling these two competing values? Admittedly, some judges will prioritize one value over the other. One judge might think it’s more important that the spouses each receive an equal share of the assets; another judge might think that it’s time for them to go about their own separate ways. However, this is usually difficult to determine without a large sample size, because setting alimony is determined on a case by case basis. That is, family law judges are to look at the facts of each case and then decide whether which factors are more important. They cannot ignore factors, as they are mandatory, but they look at a case and decide one factor is more appropriate than another.

For instance, length of marriage is often an important factor. If the marriage is a short term marriage (less than 10 years), a judge is much more likely to believe that the spouses should be self-sufficient sooner. After all, the couple probably hasn’t created a lot of wealth together, they’re probably both young enough that they can independently find and hold a job, and since they weren’t married that long, they probably haven’t become as dependent on each other as an older marriage. On the other hand, a couple that splits after 30 years together has probably accumulated a lot of money and debt together and chances are that one spouse has become financially dependent on the other. In a long term marriage (10 years or more), judges would probably place more emphasis on equality, making sure that each spouse gets out what he or she put in.

Since California largely leaves alimony in the hands of judges, it is often best to settle a case. Although laws are meant to provide clear guidance, factor balancing tests are anything but clear. Settlement is often preferred because clients will have the most control over the outcome; a judge with a factor balancing test can be unpredictable.

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