Saturday, April 2, 2011

AM I ELIGIBLE FOR ALIMONY?

I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:


QUESTION: Am I eligible for alimony? How do I know if I am entitled to alimony? I was going to therapy in for two years because of the verbal abuse my husband put me through. We were married for 7 years.


ANSWER: You should retain an experienced Family Law Attorney to represent you in the divorce.

If, during your marriage, your husband earned significantly more than you earned, and still earns significantly more than you earn, you will likely be awarded alimony (Spousal Support).

If your husband is currently out of work, the Court could retain jurisdiction over the issue of Spousal Support, so that you could seek Spousal Support when he gets re-employed, or the Court could possibly impute income to your husband based on admissible evidence demonstrating his ability and opportunity to work, in which case the Court could award you Spousal Support based on income imputed to your husband.

During the divorce, you may file an OSC (Order to Show Cause), supported by your Income and Expense Declaration, to request an order of Temporary Sousal Support pending tral or settlement of the case.

Temporary Spousal Support is based on spousal support guidelines in effect in the county in which your divorce is filed; those guidelines are based primarily on your monthly income and your husband's monthly income.

Permanent Spousal Support is based on the many factors addressed in Family Code Section 4320, including but not limited to the marital standard of living. Whereas Temporary Spousal Support is based on a mathematical calculation, Permanent Spousal Support is not, but instead it is based on testimony, evidentiary facts and advocacy.

It is possible but by no means certain that the verbal abuse or your prior therapy might be considered in the setting of Permanent Spousal Support, under Family Code Section 4320(n), the "catch-all" provision: "Any other factors the court determines are just and equitable."

Family Code Section 4320(i) includes, as a factor to be considered by the court in ordering Spousal Support: "Documented evidence of any history of domestic violence, as defined in Section 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 ...".

The "abuse" addressed in Section 6211 is defined in Section 6203 as "(a) Intentionally or recklessly to cause or attempt to cause bidily injury; (b) Sexual assault; (c) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another; or (d) To engage in any behavior that has or could be enjoined persuant to Section 6320."

Section 6320 allows the court to issue an Ex Parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, destroying personal property, contacting directly or incirectly by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, or other named family or houshold members on a showing of good cause.

We have no-fault divorce in California, so only if the Court found your husband's abusive conduct and your resulting emotional distress to come within one of the above categories would the Court could consider those factors in ordering Spousal Support, unless it chose in its discretion to consider the verbal abuse and emotional harm under Section 6320(n).

For short-term marriages, i.e., marriages under 10 years of duration prior to separation, the Court generally awards Permanent Spousal Support for 1/2 of the duration of the marriage.

This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Divorce Lawyer and Family Law Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. www.conviser.net.

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