There are two types of Spousal Support. Temporary Spousal Support and Permanent Spousal Support. Temporary Spousal Support is support that is typically ordered early on in the marital dissolution case. It is determined by comparing the income of the respective parties. It is calculated by the court and attorneys a like by using a computer program. Once the martial dissolution is close to being final, the issue of Permanent Spousal Support will decided by either mutual agreement or by the court. Permanent Spousal Support is much more elusive and complicated as compared to Temporary Spousal Support. Permanent Spousal Support is determined by applying the factors in Family Code Section below.
Permanent Spousal Support can be for a short duration or it can continue for life. In a short term marriage, it tends to last for a short duration. In a long term marriage, it can last for life. Typically, the court in a long term marriage will require the person who is receiving the spousal support be allowed to receive it for a period until he or she can become “self supporting”. Spousal Support is modifiable provided there is a change in circumstances that can be demonstrated to the court.
Spousal support, or alimony, may be granted when one partner’s income exceeds the other’s, especially if the party receiving support has less education or earning power. The amount of spousal support depends on many factors. The duration of spousal support depends upon the length of the marriage. Where the marriage is a long-term marriage (10-plus years), support may be granted until death or remarriage.
Establishing Spousal Support in California
Under California spousal support law, spousal support may be “permanent” or temporary. Permanent spousal support may be ordered in marriages of long duration (generally ten years or more). In short term marriages (less than ten years); support is generally payable for one half the duration of the marriage.
In making an initial order, the court must consider the following factors: The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage; the marketable skills of the supported party; 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; and the extent to which the supported party contributed to the attainment of an education, career position or a license by the supporting party.
In addition, the court must also consider: 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; the degree to which the supported party shall be self-supporting within a reasonable period of time; and other factors the court determines are just and equitable.
When you initially negotiate or litigate a spousal support order, it is important to ask the court to make specific findings regarding each of these factors.
For example, it is very important that the court makes finding as to what the exact standard of living is and to make a specific itemized description of the party’s standard of living.
In addition, it is CRUCIAL that the court make specific findings regarding the earning capacity of your spouse. Toward that end, you should request that your spouse undergo a vocational examination in order to determine his/her earning capacity.
Even if your spouse chooses not to work, our office will request that the court impute some sort of income in the judgment. We will also ask the court to issue what is called a “Gavron warning” in the judgment, which is basically an admonition by the court to the supported spouse that s/he become self-supporting within a reasonable period of time and that failure to do so may be grounds for reducing or terminating support.
It is also important to give a lot of thought to how you’re Income and Expense declaration is completed in order to get an accurate estimate of what your monthly budget is. Our office will work with you in filling out your income and expense document.
When the judge makes his or her final order, the judge must consider the factors in California Family Code section 4320.
These factors are:
The length of the marriage or domestic partnership,
What each person needs,
What each person pays or can pay (including earnings and earning capacity),
Whether having a job would make it too hard to take care of the child(ren),
The age and health of both people,
Debts and property,
Whether 1 spouse or domestic partner helped the other get an education, training, career, or professional license,
Whether there was domestic violence in the marriage or domestic partnership,
Whether 1 spouse's, or domestic partner’s career was affected by unemployment, or by taking care of the children or home, and
The tax impact of spousal support (note: federal and state tax laws were not changed to recognize domestic partnerships.)
Spousal and domestic partner support usually end when:
A court order or judgment says it ends,
1 of the spouses or domestic partners dies, or
The person getting the support remarries or registers a new domestic partnership.
The answer is typically a resounding “YES!” In most cases, long-term spousal support orders CAN be modified, or even terminated, throughout the support period.
Except in cases where there is a written or in-court oral agreement by the parties expressly providing that spousal support is non-modifiable, the court generally retains continuing spousal support jurisdiction and can terminate or reduce spousal support in later court proceedings.
So long as the court retains jurisdiction over the issue of spousal support, it may grant your request to modify spousal support if our office can show “a material change of circumstance” since the most recent court order. When reviewing your modification request, the court must consider the following factors:
Reducing Support if Spouse is Self Supporting
Modification Based on Ability to Pay Spousal Support
Reducing Spousal Support Based on Obligations
Other Factors that affect Modification of Spousal Support include:
CASTILLO & ASSOCIATES will aggressively the factors found below to ensure that a fair and equitable amount of Permanent Spousal Support will either be received or paid depending on the facts of your case.
Factors the court determines
4320. In ordering spousal support under this part, the court shall consider all of the following circumstances:
(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 4324.5 or 4325.
(n) Any other are just and equitable.