SPOUSAL SUPPORT IN CALIFORNIA
Aug. 9, 2019
Also referred to as “alimony,” spousal support refers to court-ordered payments that a higher-earning spouse must pay to the lower-earning spouse during the divorce process and after divorce is finalized. The purpose of spousal support is so the lower-earning spouse can maintain his or her marital standard of living at least until he or she can become self-supporting. In theory, spousal support in California is supposed to bridge the gap between the time it takes for that married person to get employment or resources to become self-sufficient. Spousal support isn’t meant to unjustly enrich one party or penalize the opposite.
The determination of whether spousal support should be awarded, the amount and duration is a complicated process. To those unfamiliar with the process, it can be scary. You will hear terms like permanent support, temporary support, marital standard of living, and imputation of income. To make matters more confusing, the law governing the amount of support and time of support is made up of several different policies, some of which are contradictory. Spousal support orders are governed by California Family Code §4320 (you will often hear it referred to as the “4320 Factors”). Family Code §4320 is made up of sixteen different factors that the court must consider in making a support award:
California Code, Family Code - FAM § 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, including a plea of nolo contendere, of any history of domestic violence, as defined in Section 6211, between the parties or perpetrated by either party against either party’s child, 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 factors the court determines are just and equitable.
Understanding California Code, Family Code - FAM § 4320
As you can see, these factors are not always consistent. For example, one policy wants the lower-earning spouse to enjoy the “marital standard of living” on the one hand but become able to afford the “marital standard of living” on his or her own, on the other hand. This may not be possible. If the wife earns $500,000 a year, and the maximum the husband can earn is $75,000 per year, it would be impossible for the husband to earn enough to meet the marital standard of living on his own.
The purpose of this article is to serve as a general guide to California spousal support, and to provide an overview of the general issues involved.
Temporary Support While the Divorce Is Pending
You do not have to wait until the divorce is finalized to begin receiving spousal support. Temporary spousal support is meant to cover the period between the filing of the Petition for Dissolution and the court issuing a final judgment for the permanent spousal support order (see below). Temporary spousal support orders are designed to maintain the status quo during the divorce proceedings. As such, the amount of the award is usually higher than what the permanent support award will be.
Generally, the court does not go too deep into the Family Code §4320 Factors when making a temporary support award. Rather the court will generally look at the incomes of the parties. Most California counties have formulas that determine temporary spousal support awards. Santa Clara County uses the DissoMaster, which is a computer program used to calculate child and temporary spousal support.
If a Petition for Dissolution has been filed and you want spousal support, you should file a Request for Order asking for support. You will not be able to collect temporary support prior to the date the Request for Order is filed.
Permanent Spousal Support
Court-issued permanent support orders will follow a trial, where the court has had an opportunity to examine the Family Code §4320 Factors at length. These awards are based on the needs and abilities of the parties and include such factors as follows:
Age of the parties
Health and physical condition of the parties
The earning capacity of the parties (e.g., taking into account the supported spouse’s marketable skills vis-à-vis the current job market for those skills)
Present income of the parties
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 duration of the marriage
The needs of each party based on the standard of living established during the marriage
Length of Support Awards
The length of the permanent support order may depend on the length of the marriage. In California any marriage over 10 years is considered a long-term marriage. Conversely, any marriage less than 10 years is considered a short-term marriage. It is the policy that a spouse becomes self-supporting within half the length of the marriage. As such, with a marriage of 8 years, the court may terminate support at the 4-year mark.
If you are the paying spouse, you do not want an order just terminating support; you want an order terminating the court’s ability to order a future support award. With a short-term marriage, once support is paid for a sufficient period of time, the court may terminate its jurisdiction to award future support awards. On the other hand, with a long-term marriage the court will probably never terminate its jurisdiction to make a future support award.
Seek Work Orders/Imputation of Income
When making a spousal support order the earning power of the receiving spouse is taken into account. If a spouse is not making a good faith effort to find work and become self-supporting, and the payor of the spousal support wishes to do so, he or she may request the judge issue a Seek Work Order. Such order will require the receiving spouse to make good faith efforts in finding work and to provide proof to the court of their efforts. This could mean they have to submit a job search log that includes cover letters and resumes along with job ads to the court, in addition to attending period hearings to review their progress. There may be a set number of jobs they must apply to during a given period, and the court will order the party seeking work to notify the other spouse and the court immediately when employment is obtained. The supported spouse may also have to register with an unemployment office.
In addition to ordering a spouse to seek work, the court has the power to impute income to a spouse upon a finding that the spouse has the ability to work and an opportunity to work. So for example, if the court finds the receiving spouse needs $5,000 per month to meet the marital standard of living, and has the ability to earn $3,000 per month, the court may order the paying spouse to pay $2,000 per month rather than $5,000. In addition, if the court finds that the higher income earner purposely caused his or her income to decrease his or her support obligation, the court can impute income to the paying spouse as well.