Often referred to as alimony or maintenance, spousal support consists of payments by one spouse to the other spouse for a certain period of time that are designed to maintain the parties standard of living that they enjoyed during marriage taking into account a number of other factors set forth in the Section 4320 the California Family Code.
Can I get spousal support before the final judgment of dissolution?
Yes. Let's say one spouse moves out of the family home leaving the other spouse to pay the mortgage and other bills. The in-spouse can ask for temporary spousal support or spousal support pendente lite. If the out-spouse doesn't agree to pay voluntarily, the out spouse can bring an Order to Show Cause and request the Court make an order.
How much support will I get or be ordered to pay?
Although many attorneys use the "guideline" dissomaster figure as a starting point for calculating permanent support, by law the Court has to consider all the factors set forth in Family Code section 4320. The starting point for calculating spousal support is to figure out the living expenses of each spouse during the marriage. This is called the "marital standard of living." Let's say that the Wife spent $5,000 per month. The goal of spousal support is to temporarily make up for the decline in a spouse's standard of living until they can become financially independent. In the above example, if the Wife could only earn $4,000 after separation, all other things being equal, the Wife should get $1,000 per month. But this is only the starting point because the Court has to consider all those other "4320" factors.
What are all the 4320 factors the Court has to consider in determining permanent spousal support?
Family Code section 4320 states:
In ordering spousal support under this part, the court shall consider all of the following circumstances:
- 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:
- 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.
- 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.
- 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.
- 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.
- The needs of each party based on the standard of living established during the marriage.
- The obligations and assets, including the separate property, of each party.
- The duration of the marriage.
- 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.
- The age and health of the parties.
- 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.
- The immediate and specific tax consequences to each party.
- The balance of the hardships to each party.
- 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.
- The criminal conviction of an abusive spouse and the elimination of the award in accordance with Section 4325.
- Any other factors the court determines are just and equitable.
Does it ever end?
The rule of thumb is that spousal support for marriages of less than ten years will terminate after half the period of the marriage. This is not necessarily the case depending on many factors particularly the goal that the Legislature has stated of fostering self-sufficiency. Support also ends with the death of either party and the re-marriage of the supported party.
What if the supported party lives with a new partner?
The supported ex-spouses non-marital co-habitation with a new boyfriend or girlfriend will not terminate spousal support but it may be grounds for filing an application for modification.
How long does the Court retain jurisdiction to modify support?
The duration of spousal support is not to be confused with the duration of the Court's jurisdiction to order spousal support. This is because as long as the Court has jurisdiction over spousal support it can always modify the award if there is a change of circumstances. In long-term marriages of longer than 10 years, the Court retains jurisdiction. In one case the Judgment said that spousal support was to last for 60 months and would then terminate forever. Prior to the expiration of the 60 months, the Wife filed an application to extend the 60 months. The Court of Appeal reversed the trial court and said that the Court retained jurisdiction to extend the support because the language of the Judgment was not sufficiently clear.
What are the tax consequences of paying or receiving spousal support?
Spousal support is tax deductible to the spouse that pays it and is taxable income to the spouse who receives it if the support is paid pursuant to a written agreement or a Court order including a Judgment. That's why it's a good idea (at least for the payor) to reduce any agreements to pay spousal support to writing and, better still, to have them incorporated into a written Stipulation and Order that can be filed with the Court.