What is Alimony?
Alimony is a fairly old concept designed to make divorce settlements more equitable by protecting the standard-of-living of the lower-earning or non-earning spouse. It takes the form of court-ordered payments from the wealthier or wage-earning spouse to the other spouse. The amount of the payments depends on several factors, including income and living expenses, among others.
Though the doctrine of alimony makes no explicit distinction between the sexes, in practice it has largely been awarded from husbands to wives, simply due to the imbalance between the number of working men and working women. However, because of modern trends towards women in the workforce, more and more husbands are claiming alimony from their divorced wives than ever before. This resulted in a controversy over the allegedly gender-biased word “alimony” and gave rise to the terms “spousal support” and “spousal maintenance.” The meaning of these different terms is identical; their adoption is a reflection of efforts to create a gender-neutral way to refer to alimony.
Like child support, alimony often becomes a hotly contested topic in many divorces, for several reasons. First of all, alimony laws in many states tend to be rather vague and leave decisions mostly up to the discretion of the courts. This has led to vastly different judgments in different courtrooms and complaints from many professionals in the legal industry.
Another issue is the perception of alimony as unfair and unjustified. This dispute typically pits women’s rights advocates against men’s advocacy groups – a throwback to the original tendency of husband-to-wife alimony payments. The problem is exacerbated by the fact that so many types of alimony judgments can be awarded, from those given only on a rehabilitative basis (until the receiving spouse is self-sufficient or remarries, for example) to those awarded for basically a lifetime. Opponents of alimony view it as nothing more than a benefit to “gold-diggers” and free riders.
Are you going through a divorce? Do you need experienced legal counsel? If so, call 858-935-6211 today to speak with a San Diego divorce attorney from Fischer & Van Thiel about your case.
Mike's Top FAQs About Family Law401K plans and divorce
401K plans and divorce
If my spouse waives his right to my 401k plan, is there any circumstance that the court will still award him half or a portion of my 401k plan?
It is theoretically possible that a court can disturb an agreement to waive rights to property, but it is unlikely. Courts will generally treat agreements as contracts, and thus are likely to strike an agreement only if it is unconscionable, induced by fraud, undue influence, duress or is against public policy. The judge cannot “reject,” nullify, or modify the provisions of an agreement merely because of his or her personal belief that a different arrangement should be made.
A marital settlement agreement, or MSA, can be used as a contract between spouses regarding the division of property that would otherwise be subject to community property laws. An MSA is subject to general contract laws, meaning that it can be found invalid if terms are against public policy (which includes, but is not limited to, (a) abrogating the statutory child support duty or impinging on the court’s jurisdiction to award child support, (b) limiting the court’s exercise of child custody jurisdiction, (c) “altering legal relations,” (d) “promoting dissolution,” and (e) providing for “fault”-based penalties at marriage dissolution) . The MSA can also be found invalid if entered into as a result of fraud, duress, menace, undue influence, or other factors which may make the agreement void or invalid. Generally, an agreement such as the MSA is favored. Hence, if there are no legal or equitable grounds for rescission or reformation it is binding on the parties and the court without express approval.
Can I get child support in California if I am not getting a divorce?
I have been separated for two years from my wife, and my kids live with me. Can I get support without filing for divorce in California? We have not been living together since our separation, and even file taxes separately.
You do not need to file for divorce in order to get support. You will need to go through the court to obtain a child support order so you will have to file something. You can contact your local Department of Child support services office and they can help you get started. So while you do not have to file for divorce, you can file for a legal separation. The court needs to know that you two have in fact separated and there is one parent who is the full time provides and therefore in need of support.
Can I move out with my daughter before the divorce in California?
My wife and I are going to divorce, but we have not filed yet. We are always fighting, and my daughter, who is 7, is very stressed with the way we are living. Can I move out with her, if I do not move far away and let him see her all the time? He is not happy with my choice. Is this legal?
Yes, you can move out with your daughter, assuming there are no court orders already in place regarding custody and visitation. It is important to maintain frequent and continuing contact between the child and the other parent. When the court makes custody and visitation orders they will look highly upon the parent who facilitated contact with the child and the other parent. It is important to make the transition as easy as possible for the child.
Question: Is there a statute of limitations on owed child support?
An ex lover of mine (20 years ago) just approached me out of nowhere about getting tested to see if her son is my child. He is 20 and I live in California. I am trying to find the statue of limitations for child support if indeed I take the test and the child turns out to be mine.
Unless the mother has made a claim for child support with the welfare office or her local Department of child support services office, they cannot now collect from you on child support. Since he is no longer a minor child now that he is emancipated, there are no obligations for child support. You can get tested to see if you are the father, but you do not have to.
If the state has paid out welfare for the child, and it turns out that you are the Father, there can be some potential liability there with having to pay back the state the money they paid out. If this is not an issue, then they cannot now ask you to pay for child support.
Is the opinion of the child ever taken into consideration in a divorce?
Typically the Courts will take the child’s opinion into consideration at the age of 12. There is no set age, it depends on the maturity level of the child. If a child is of sufficient age and capacity to form an intelligent preference to custody the court can take it into consideration. It is important to note that all judges will rule for what is in the child’s best interests whether it be for the mother or the father.