How Is Spousal Support Determined

In California, alimony is called “spousal support.” When a husband and wife or same sex couple divorce, the court may order the higher earning spouse to pay the lower earning spouse spousal support.  The purpose of spousal support at first is to maintain the status quo of the marriage, so the lower earning spouse is able to support themselves during the divorce case.  If the couple has been married for more than 10 years, the court may order the higher earning spouse to pay spousal support for the rest of the lower earning spouse’s life or until they remarry. However, California law sets the expectation that the lower earning spouse become self-supporting as soon as they are able.  This generally means that spousal support is temporary even in long term marriages.  to assist the lower earner in maintaining that lifestyle for at least some period of time.  Support can also consist of a single lump-sum payment, monthly payments or any acceptable agreement that the divorcing parties may make.

There are several factors the court may consider in determining spousal support

Duration of California Spousal Support

The duration of spousal support in California is often tied to the length of the marriage. After a marriage of less than 10 years, a court will not usually order support for longer than half the length of the marriage. In a long term marriage, spousal support cannot be waived, both parties retain the right of spousal support until they die or remarry.

Calculation of Spousal Support

Unlike child support where there is a fixed guideline that the court must follow, the spousal support guideline is discretionary.  A judge will normally take into consideration the amount of child support being paid, the various obligations of the parties and who is paying them, other factors such as health or disabilities. Of course the judge will also consider the length of marriage and then determine the appropriate amount to maintain the status quo of the marriage.

However the goal is for the spouse to become self-supporting to the greatest extent possible. The court will therefore consider the extent to which each spouse’s earning capacity is sufficient to maintain the marital standard of living, taking into account:

• the marketable skills of the supported spouse,
• the job market for those skills,
• any time or expense the supported spouse requires to acquire education or training for employment or enhanced employability, and
• the extent to which periods of unemployment due to domestic duties during the marriage have impaired the supported spouse’s present or future earning capacity.

The court may also consider other relevant factors including:

• the extent to which the supported spouse contributed to the other spouse’s attainment of education, training, professional licensing or career advancement,
• the ability of the supporting spouse to pay support, taking into account earning capacity, earned and unearned income, assets, and standard of living,
• the needs of each party based on the marital standard of living,
• each spouse’s obligations and assets, including separate property,
• the duration of the marriage,
• the ability of a spouse who is also a custodial parent to engage in gainful employment without unduly interfering with the interests of dependent children,
• each spouse’s age and health,
• any documented history of domestic violence by either spouse,
• the immediate and specific tax consequences to each spouse,
• the balance of the hardships to each spouse, and
• the goal that the supported spouse will be self-supporting within a reasonable period of time—presumed to be one-half the length of a marriage unless the marriage was longer than 10 years.

A spouse’s conduct or who is to blame for the divorce is not a factor in determining the amount of spousal support.

Modification or Termination

Typically spousal support can be modified any time there is a significant change in circumstances with the parties. The court will set the duration of spousal support in most cases but, spousal support can be terminated or suspended if the proper showing of a change in circumstance is made. One example is if husband was ordered to pay spousal support to wife but a couple of years later, wife had won 10 million dollars in the lottery. Wife would no longer need the support and support would likely be terminated or suspended.

Tax Effects

The spouse receiving spousal support will usually have to pay income tax on the amount paid. The court will consider the tax consequences of both parties when ordering spousal support. In some situations, the parties may agree to spousal support that creates a tax benefit for both parties. Providing the agreement conforms to California State law, the court will typically not interfere in such agreements.