What Is It?
First it is one of the most hotly contested, complex issues in California Family Law Court. The reason for this is two-fold- the first being that it can be a very complex legal issue. The other reason is that people feel very strongly about it one way or the other. The higher earner in the family generally wants to minimize the support obligation and the lower earner wants to maximize it.
Spousal support is where the court orders one spouse of the marriage to pay a determined amount of money to the other spouse on a monthly basis.
Spousal support is ordered in California when there is a discrepancy in the earnings of the spouses. For the most part (except for a very narrow, technical legal exception called putative spouse) spousal support is only an issue with people who were married, not if you had a child together or were together forever but did not legally marry.
What Are the Different Types of Spousal Support in California?
TEMPORARY SUPPORT – The term “temporary support” refers to any spousal support awarded while the divorce is pending. This means in between the time someone first files for divorce and when the divorce is finalized.
PERMANENT SPOUSAL SUPPORT – Permanent spousal support is the support that is contained in the final judgement. Permanent support can last for any amount of time. The word permanent does not refer to duration only finality in the fact that it’s what is written in your final judgement. Therefore, you can have “permanent spousal support” that lasts for one month, or “permanent spousal support that lasts until death or remarriage of the supported party and everything in between.
How Is Spousal Support Calculated in California?
Temporary support can be calculated using a software program approved by the state legislature. You input numbers for income and deductions and it spits out a number.
Permanent support is not as cut and dry. Spousal support in California is discretionary with the court. This means the Court can arrive at many different conclusions and they are all acceptable under the law. In determining permanent support, the court is not allowed to use the software and formula referenced above. The court must weigh the factors set forth in California Family Code 4320. Those factors are:
- Whether earning capacity of one each party is enough to maintain marital standard of living.
- Marketable skills of the supported party (and the job market for those skills etc.)
- Extent by which the supported party’s earning ability was stifled because of raising kids.
- Extent to which supported party helped the other party get their career (did the supported party put the other through school? Etc.)
- Ability to pay support (can the supporting party afford it?)
- Needs of each party (what does it cost to live for each person?)
- The obligations and assets of each party (does someone have a trust fund? Is someone else obligated to care for a family member etc.?)
- Duration of the marriage (long term -over 10 years vs. Short term- under 10)
- Ability of supported party to work (can the spouse work they just choose not to?)
- History of domestic violence (convictions between the parties for domestic violence)
- Tax consequence to the parties (what does the payment or receipt of support do to each party’s tax obligations and liabilities)
- Balance of hardships to each party (is there something about this situation that would make it such that the payor should pay less, or receiver should receive more because of some other hardship?)
- The goal that the supported party shall be self-supporting in a reasonable amount of time (if someone has not worked and made no efforts to have their own income the court will consider that)
- Anything else that the court thinks is just and fair to consider (and this means virtually anything else- which is why this issue is so discretionary).