Guide to Spousal Support in California
A key issue that arises in your divorce is spousal support, or alimony. Spousal support comes in two varieties: temporary spousal support and long-term spousal support. It must be requested by one of the divorcing spouses.
If neither spouse requests spousal support, jurisdiction will be reserved on the issue unless the parties agree to terminate it in the judgment paperwork. (By reserved, we mean the court maintains the "ability" to award it if one of the parties requests it later, usually by filing a Request for Order.)
There are lots of hypotheticals when we talk about spousal support. In some instances, it's formulaic. In others, it's case-specific. This is one area in which it's a good idea to consult a lawyer to know your rights. Ideally, you and your spouse will reach an agreement regarding the amount of support one will pay to the other, how long it will last, and under what circumstances it would be modified. But often in states like California, where the cost of living is high, that's not the case. In this article, we explore the following for both temporary and long-term support:
- How spousal support is determined (including the amount)
- How the duration is determined
- How the support may be modified (including what the parties will have to show)
How is temporary spousal support determined?
Temporary spousal support is provided while dissolution or legal separation proceedings are pending. If the parties were married or domestic partners, this triggers the right to ask for temporary spousal support. If the parties were unmarried or not registered domestic partners, they cannot ask for spousal support in family court. In the area of spousal support, there is a lot of judicial discretion. This means once your judicial officer hears your case, they can order support based on facts and circumstances. Spousal support is triggered by one party making a motion asking for it.
Standard of living
The first question the court considers is whether both parties can maintain their standard of living during the divorce proceedings. This can be done via an equitable allocation of the family income. Note that if you had a short but messy marriage where the divorce lasted longer than the marriage itself, you may end up paying spousal support longer than you were married. Temporary spousal support is generally determined by a guideline formula. These formulas use various calculators that account for the taxable income and other tax considerations of both parties. (In California, this is often the DissoMaster program, and Hello Divorce can help you calculate support when you use us to help you with your divorce.)
Child support before spousal support
If child support is at issue, you can also use the Department of Child Support Services calculator to get an idea of what spousal support would look like in your case. Spousal support is secondary to child support, which is also determined with a tax calculation program. This means if there are minor children from whom support has been requested, child support receives priority. (In California, your first obligation is considered to be your minor children.)
After spousal support is calculated, parties can argue for a higher or lower number. The guideline number can be rebutted more easily than a child support number by showing the other obligations and needs of each party. You can expand beyond numbers and point to what is needed and what is not. For example, you can point to what the support is for (bills and basic needs as opposed to expensive beauty habits or the "need" to buy a new car every two years). In child support, the judicial officer may order guideline support based solely on your taxable income and other tax-based distinctions. But in spousal support, both parties have the right to ask for more or less support with much more discretion.
Aside from guidelines, what does the court consider?
- How much money does each party make? The support calculator takes this into account, but if you make roughly the same amount, likely there will be de minimus or no support ordered.
- What are the resources of each party? If each has resources, the need for support may be questioned.
- How long was the party married?
- Was a standard of living established? This is particularly important if one party starts earning more money after the marriage.
How long does temporary spousal support last?
Temporary spousal support terminates at issuance of the judgment, dismissal of the case, or expiration of the terms of an agreement or the order of the court. Temporary spousal support can expand beyond judgment or terminate before judgment. This happens when the divorce either A) goes quickly because arrangements are reached, or B) is very contentious, but a time limit was set so it terminates before the divorce fully resolves.
The length of your marriage matters. Often, the quote is for half the length of the marriage. (This is for short-term marriages of 6 to 10 years and is aimed at getting people back on their feet.) But you also want to consider the following:If you were married less than six years, support may last for the term of the divorce proceedings, an amount of time agreed upon, or time ordered by the court.
If you were married for six years or more, courts usually order support for half the length of the marriage.
Once you have been married for 10 years or more, the court has the discretion to set support for as long as needed.
How do you modify temporary spousal support?
Temporary support may be modified or terminated by the court at any time. No change of circumstances must be shown. This means you don't have to have any change in your income, their income, or any other circumstance. You can simply ask for another review. But be wary of annoying the judge by arguing something again, especially if you aren't introducing something new.
How is long-term spousal support determined?
Long-term spousal support is support after a divorce or legal separation. Post-judgment or legal separation, the court may order any amount for any period of time the court deems reasonable. If you had a long-term marriage of 10 years or more, your right to long-term support triggers automatically. If your marriage lasted less than 10 years, the judicial officer still has the discretion to consider the facts and circumstances and whether to treat the marriage as a long-term marriage.
Usually, but not always, support in a short-term marriage lasts about half the length of the marriage. With a long-term marriage, support can and often is ordered for longer than half the length of the marriage.
Family Code Section 4320
Again, we give discretion to the judge A LOT of discretion. After all, multiple factors must be considered. People often state the standard of living they enjoyed during marriage, but this is just one of the so-called 4320 factors. (The number refers to Family Code Section 4320, or the statutory authority to award post-judgment spousal support.) In this case, the court considers 14 factors.
The factors weighed by the court include the following. (You should consider them, too, when negotiating with your spouse.)
- The extent to which the party's earning capacity will maintain the standard of living established during the marriage.
- What the support recipient might need to do to develop marketable skills.
- Whether the earning capacity of the recipient was impaired by periods of unemployment during the marriage devoted to domestic duties.
- The recipient's contributions to the payor in acquiring education and enhanced earning capacity.
- The payor's ability to pay.
- Each party's needs (based on the standard of living during marriage).
- Each party's assets, including separate property assets.
- The duration of the marriage.
- The recipient's ability to be gainfully employed without interfering with the interests of dependent children.
- Each party's age and health.
- Documented evidence of domestic violence (Note: There is a public policy against a victim paying their abuser. Hence, the court will generally not order an abused party to pay support to an abusive spouse. Notably, this does not extend to child support.).
- The tax consequence to each party. Note: The paying party can NO LONGER claim a tax deduction. The recipient does NOT claim it as income (that is, they do not pay taxes on it).
- The balance of hardships for each party.
- The goal that the recipient will become self-supporting within a reasonable timeframe.
- The criminal conviction of an abusive spouse when the court is reducing or eliminating a spousal support award.
- Any other factors the court deems just and equitable.
Note the final catch-all factor (#14), which is there in case something important doesn't fall into one of the other categories. For long-term support, the court cannot use the guideline formula. Although they can run a guideline formula, the judicial officer must weigh the factors and apply them. This has to do with the fact that it can be ordered non-modifiable and last until one party re-marries (sometimes cohabitates) or dies. More on that below.
How long does long-term spousal support last?
Once the court weighs the 4320 factors, it can set a time for the support to be paid. Payment may be ordered as an ongoing obligation until one party dies or remarries. Or, it may follow a step-down schedule that decreases over time. It might also be ordered for a set amount of time based on need. Again, the discretion of the court is something to consider.
How do you modify long-term spousal support?
Generally speaking, long-term spousal support can be modified. However, recent trends suggest that if the language is specific enough, it can be ordered to be non-modifiable. This means you have to opt into spousal support being non-modifiable. It can be done, but it's hard. The court has several options here: It can set a date in the future when jurisdiction over spousal support will terminate.
- It can deem support available at this time but reserve jurisdiction.
- It can set an amount that decreases over time and potentially sets to zero while maintaining the right to order it later. Often, if the marriage was long, a judicial officer won't allow parties to terminate their right to request spousal support.
To change a long-term support court order, the party asking to modify it must usually show a change of circumstances. This could be something like an income shift or pay increase for the other party. Spousal support is a complicated issue, but it's not brain surgery. We're happy to help you learn how to maximize the support you receive or limit your financial exposure.