Spousal Support

Like child support, spousal support can have a great impact on your financial future, whether you are the party that is owed support or the party that is obligated to pay support. In California, the court has broad discretion to determine an appropriate amount of spousal support, taking into account the circumstances of each marriage and considering several different factors, as set forth below. The amount and the duration of spousal support can be negotiated between the parties as well. ​

There are two types of spousal support under California law, temporary spousal support and permanent spousal support. Temporary spousal support is paid to one spouse throughout the progression of the divorce case and is usually paid by the higher earner. The court has wide discretion in setting temporary spousal support according to the needs of the supported party and the ability to pay of the supporting spouse. The purpose of temporary spousal support is to maintain the status quo, pending the entry of a Judgment of Dissolution. Temporary spousal support is usually calculated using the California child support guideline calculator which takes into consideration factors such as each party’s income, health insurance premiums paid by either party, 401k contributions, self-employment income, support paid for children of another relationship, etc.

Permanent spousal support is a spousal support plan that is put in place at the conclusion of a divorce case. The amount and duration of permanent support received will largely depend on the length of the marriage and the marital standard of living, although there are multiple factors that the court must consider. Specifically, the court must consider the following factors pursuant to California Family Code Section 4320:

  • a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
    • (1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.
    • (2) The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
  • (b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.
  • (c) The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.
  • (d) The needs of each party based on the standard of living established during the marriage.
  • (e) The obligations and assets, including the separate property, of each party.
  • (f) The duration of the marriage.
  • (g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
  • (h) The age and health of the parties.
  • (i) 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, and consideration of any history of violence against the supporting party by the supported party.
  • (j) The immediate and specific tax consequences to each party.
  • (k) The balance of the hardships to each party.
  • (l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a “reasonable period of time” for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.
  • (m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4325.
  • (n) Any other factors the court determines are just and equitable.

It should be noted that Family Code Section 4320 refers to the “earning capacity” of both parties, rather than simply his/her “earnings” or “income.” This means that a supporting spouse cannot intentionally lower his/her income or take a job far below what he/she has the capacity to earn in order to avoid a support obligation. It also means that a spouse who is being supported by the higher earning spouse cannot refuse to work or intentionally lower his/her income in order to receive more support. A supported spouse also cannot simply choose to remain unemployed and accept spousal support from the other spouse. Oftentimes when the earning capacity of a spouse is at issue, the court will order a vocational evaluation to determine what that spouse could be earning. The court can then use that number to impute income to a spouse if he/she does not make good faith efforts to find employment according to his/her earning ability.

As to the marital standard of living, the courts normally look to the last three to five years of the parties’ marriage to determine what the marital standard of living was. The goal of spousal support is to allow the lower earner spouse to maintain the marital standard of living after the divorce is final. However, in many cases if the higher earning spouse were to pay the lower earning spouse enough support to keep him/her at the marital standard of living, it would put the paying spouse below the marital standard of living. Thus, in reality, after a divorce, both parties must learn to live below the marital standard of living.

It is also important to understand that the although it is often called “permanent spousal support”, such support is rarely actually “permanent.” This is because in California, both spouses have an obligation to make good faith efforts to become self-supporting after a divorce. If a supported spouse fails to make good faith efforts to become self-supporting, the court can rely on that failure to modify spousal support downward, or even terminate spousal support. In a short-term marriage, which is a marriage of less than ten years, California law holds that a reasonable period of time to become self-supporting is half the length of the marriage. Although the court is not limited to this time period in ordering support, in practice, this means that support is normally ordered for half the length of the marriage in a short-term marriage. In a long-term marriage of more than ten years, there is no set “reasonable” length of time to become self-supporting and the court has more discretion in that situation.

Because spousal support can have such a great impact on your financial and emotional well-being and because there are so many factors the court will consider, it is important that you seek advice from a skilled attorney that can guide you through the process. At Argyris Mah, LLP, our experienced and knowledgeable attorneys will help you create a plan that will ensure your and your family’s financial well-being for years to come.

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