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COVID-19 took a substantial economic toll on many families. Critically, with so many people out of work during the pandemic, those who relied on the financial support of their former spouses may end up with unpaid alimony. The impact of the unexpected loss of income from alimony can create substantial hardship — if you were entitled to spousal support that went unpaid as a result of COVID-19 or for any other reason, you may be entitled to a legal remedy.
Alimony — also called spousal support — is payment made by one spouse to another after a divorce. The purpose of alimony is to help ensure the spouse who was financially dependent on the higher-earning spouse during the marriage does not incur a substantial economic burden. In other words, it serves to maintain the financial status quo of the marriage.
Alimony payments can vary considerably based on a number of factors. The duration payments are made can also range from a few months to many years, depending upon how long the marriage was and other variables.
Once alimony has been ordered by the court pursuant to divorce, the paying spouse must abide by the order. Importantly, they are not permitted to end alimony payments on their own accord for any reason — including financial difficulty. If a spouse simply decides not to pay and does not request a modification from the court, it may be necessary for the receiving spouse to file a motion for contempt or enforcement with the court.
Unpaid alimony payments can come with steep consequences, including the imposition of interest on the past due payments — also called “arrears.” Additionally, a judge can:
The payor spouse may also be held in contempt or subject to incarceration in certain cases. If it is found that the payor spouse willfully disobeyed the court order but has the ability to make payments, they may be sentenced to jail time.
Wage garnishment orders, also known as earnings assignments, can be served on the paying spouse’s employer once the court determines how much alimony should be paid. This is the best way to ensure alimony payments are made. Specifically, these orders allow alimony payments to be taken directly from the payor spouse’s paycheck and forwarded from the employer directly to the receiving spouse.
Although the court must issue an earnings assignment in every case ordering alimony, the parties may also request that payments be made among themselves rather than go through the employer. In these situations, the court will order the earnings assignment to be “stayed.” While the order will still be prepared, it will not be served upon the employer as long as the alimony payments are made to the receiving spouse. If the spouse ordered to pay alimony fails to do so, the receiving spouse can ask that the stay be ended and allow you to serve the earnings assignment on the employer.
Certain situations may warrant requesting an alimony modification from the court. California courts will reevaluate an alimony obligation if there has been a material or substantial change in circumstances. A common reason a modification may be granted includes significant decrease in income. This may be due to job loss, illness, or other circumstances beyond the control of the paying spouse — loss of income due to quitting a job is unlikely to warrant a modification. Modifications may also be appropriate when the receiving spouse has become self-supporting and no longer has a need for the payments.
Significantly, even if you and your spouse are able to reach an agreement outside of court to modify alimony payments, it is still necessary to obtain a new order. Unless a court modifies the previous alimony order, it is still in place and legally enforceable.
It’s also crucial to be aware that modifications are not granted retroactively. In other words, a court cannot modify arrears incurred before the date that the modification motion was filed. For modifications made during the COVID-19 pandemic, the court used the date of mailing as the applicable date for modification orders, pursuant to Emergency Order 13 allowing alimony modification proceedings to be commenced by mail.
If you are owed alimony payments, it may be necessary to take legal action. Providing skillful counsel and reliable representation, The Law Offices of Rick D. Banks assists clients throughout Fresno and the surrounding areas with a wide variety of divorce and family law matters for more than 20 years — including those involving alimony. To schedule a no obligation consultation, call (559)222-4891.