Spousal Support

Spousal Support

Spousal support (which is sometimes referred to as Alimony in other states) is a regular payment made from the spouse who earns more money (“payor spouse”) to the one who earns less(“supported spouse” or “payee spouse”).   In California, spouses can request temporary spousal support, permanent spousal support, or both.

What is “Temporary Spousal support?

It’s referred to as “temporary” because it’s meant to provide some financial support to the lower-earning spouse during the divorce proceeding, and it ends once a permanent spousal support award is in place.  The temporary spousal support statute allows the court to order any amount of spousal support that the court feels is just.  At first blush, that seems to give the court very broad discretion.  However, most local rules state that the court will set temporary support by using a specialized family law software program that automatically generates a support figure based on specific factors, such as the spouses’ incomes, health insurance deductions, and other earnings-related considerations. Though there are a few different software programs out there, they arrive at roughly the same support figure.

What is “Permanent Spousal support?”

Permanent spousal support, sometimes referred to as “long-term support,” is a regular support payment from the payor spouse to the supported spouse. Unlike temporary spousal support, which is paid to help the supported spouse meet expenses during the divorce, permanent spousal support is granted in order to place the supported spouse at or near the “marital standard of living” (the financial standard of living established during the marriage) after the divorce.

What factors do courts consider when determining permanent spousal support?

If you and your spouse can’t agree on permanent spousal support as part of your divorce negotiations, you’ll probably end up in court, where a judge will decide both the amount and duration of long-term support.

Judges will consider various factors in order to place the supported spouse in a position as close as possible to the marital standard of living, until that spouse can reasonably become self-supporting.  When looking at who should pay spousal support, and in what amount, courts consider the extent to which each spouse’s earning capacity (potential to earn income) is sufficient to maintain the marital standard of living, taking into account a long list of factors including:

– the marketable skills of the supported spouse; the job market for those skills; the time and expense required for the supported spouse to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire more marketable skills or employment

– the extent to which the supported spouse’s earning capacity is impaired by periods of unemployment incurred during the marriage to permit the supported spouse to devote time to domestic duties

– the extent to which the supported spouse contributed to the paying spouse’s attainment of an education, training, career, or license

– the paying spouse’s ability  to pay spousal support (taking into account the paying spouse’s earning capacity, earned and unearned income, assets, and standard of living)

– both spouses’ financial needs based on the marital standard of living

– both spouses’ obligations (debts) and assets, including separate property

– the length of the marriage

– the supported spouse’s ability to work outside the home without excessively interfering with the interests of any dependent children in his or her custody, and

– the age and health of the spouses.

– any documented domestic violence between the parties.

How long does permanent spousal support last?

The term “permanent” spousal support is somewhat of a misnomer. Very few, if any, support awards will continue permanently.

There is a rebuttable presumption that for short-term marriages (which are those less than ten years), permanent spousal support lasts no longer than half the length of the marriage, with “marriage” defined as the time between the date of marriage and the date of separation. So, if your marriage lasted eight years, you may expect to pay or receive spousal support for four years.  This includes the payments made both under temporary and permanent support.

If your marriage was very short, permanent support may never become necessary. For example, if your marriage lasted only one year, you can expect to pay or receive spousal support for six months; but this obligation may be met through temporary support payments.

For marriages over ten years, there’s no hard-and-fast rule for figuring out how long spousal support should last.  Absent an agreement otherwise, the courts will retain jurisdiction to award support until death of either party or remarriage of the supported party.  However, the court may reduce support to the “jurisdictional level” of zero, while keeping the authority to award support at a later time.

Modification of Spousal Support

Either spouse may request that the duration and/or amount of spousal support be modified (changed), as long as the original order (or marital settlement agreement) awarding spousal support doesn’t contain any language that makes spousal support “non-modifiable.”

There are two ways to modify spousal support. First, you and your spouse can agree to change the amount and/or duration of spousal support. If this happens, you should enter into a written contract that spells out the new agreement, and ask the judge to turn the agreement into an official court order.

If you can’t agree, then the person who wants to modify spousal support must file a motion with the court and show a “material change of circumstances” from the time the original support order was made. The involuntary loss of a job, for example, may constitute a material change of circumstances. If the payor spouse’s income has decreased through no fault of his or her own, a judge may find that it’s appropriate to reduce support.

Automatic Termination of Spousal Support:

A support obligation will automatically terminate upon the death of either party, or the remarriage of the supported spouse.