One of the main sources of contention during divorce centers on spousal support (or alimony). If one spouse’s income or wealth far exceeds the other’s, they will likely need to pay the less-financially comfortable spouse an amount, either monthly or in one lump sum, to help them acclimate to post-married life.
There are two types of spousal support: temporary and long-term. A spouse must formally request spousal support. If neither party requests support, a judge can order it — unless both spouses agree to terminate it in their judgment paperwork. Alternately, the court has the ability to award it if one of the parties requests it at a later time (usually by filing a “request for order.”)
So, how is spousal support determined? It can be very formulaic, but usually also incredibly case-specific. Spousal support is one issue when we do often advise you to consult a lawyer to know your rights (either so you receive a fair amount of support or do not end up paying your ex more than is fair). Ideally, you and your spouse should reach an agreement on the amount, how long and when it will be paid out and any circumstances which would allow it to be modified. As you can imagine, reaching an agreement can be stressful — especially in areas where the cost of living is high or there is a lot of money at stake.
This article lays out all the general information about spousal support or alimony. Keep in mind, though, that each state has slightly different rules and each couple’s case is handled with their unique circumstances in mind.
Temporary Spousal Support, ie support while the dissolution or legal separation proceedings are pending.
Determination of Temporary Support
If the parties were married/domestic partners, this triggers the right to ask for temporary spousal support. If you were not married or registered domestic partners, you cannot ask for spousal support in the family court. In the area of spousal support, there is a lot of judicial discretion. This means once your judicial officer hears the facts of your case, they can order support based on the facts and circumstances. Spousal support is something that is triggered by one party or the other making a motion asking for it.
The first question the court is going to consider is can both parties keep their standard of living during the divorce proceedings, and this can be done via an equitable allocation of the family income. Temporary spousal support is for the duration of the divorce proceedings. In some cases, if you had a short but messy marriage where the divorce last longer than the marriage you may be paying spousal support longer than you were married.
Temporary spousal support is generally set using what is called a guideline formula – these are based on formulas and use various calculators that take into account the taxable incomes and other tax considerations of both parties (often the Dissomaster program). If you have kids and child support is at issue, you can also use the Department of Child Support Services calculator to get a good idea of what spousal support will look like in your case. Spousal support is secondary to child support, which is also determined using a tax calculation program. This means if there are minor children of the relationship and support has been requested for them, child support is given priority as in California we consider that your first obligation is to your minor children.
After the guideline spousal support calculation is run, the parties can consider the numbers and argue for a higher or lower number. In the issue of spousal support, the guideline number can be rebutted more easily than in child support by showing other obligations and the needs of each party. You can expand beyond just the numbers and point to what is needed and what is not. You can point to what the support is going to be, be it bills, basic needs, things that were paid for during marriage, vs. expensive beauty habits, or the right to have a new car every two years
The Judicial officer may still 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 both more and less support with much more discretion (because you are both adults).
Aside from guidelines, what does the court consider?
- How much money does each party make? Really the support calculator will take this into account, but if you make roughly the same amount then likely there will be de minimus or no support ordered.
- What are the resources of each party? If each has resources, then is there really a need for support?
- How long was the party married? Was there a standard of living established (This is particularly important if one party starts making a lot more after the marriage)?
- The kitchen sink – this is a very case-by-case area when deviating from guidelines. Every marriage is different and the needs of both parties have to be considered.
Duration of Temporary Spousal Support
Temporary spousal support terminates at either: 1) Issuance of the Judgment; 2) Dismissal of the Case or 3) Expiration under the terms of an agreement or the order of the court.
Temporary spousal support means it can expand beyond judgment or terminate before judgment. This happens when the divorce either a. goes quickly because arrangements are reached, or b. the divorce is very contentious but a time limit was set so it terminates before the full divorce is resolved.
The length of your marriage does matter. Often times the quote is for half the length of the marriage when it is short-term marriage – this is aimed at getting people back on their feet (and is actually only supposed to apply to marriages between 6 and 10 years). Depending on the length of your marriage and whether you agree. It can be for the pendency of the proceedings. But you also want to consider:
- If you were married less than 6 years it can be for the term of the divorce proceedings, an amount of time agreed upon, or an order of the court.
- If you were married for 6 years or more, then courts will usually order half the length of the marriage.
- Once you have been married for 10 years or more, the court has the discretion to set it for as long as it is needed based on a variety of factors, ie, long-term support.
Temporary support may be modified or terminated by the court at any time. No change of circumstances has to be shown! This means you don’t have to have any change in your income or their income or any other circumstances. You can simply ask to have it reviewed again. But, be wary of annoying the Judge by arguing something again, especially if you aren’t introducing something new.
Long Term Spousal Support, ie spousal support after a divorce or legal separation.
Long Term Spousal Support Determination
Post- Judgment or legal separation (a judgment light if you will) – the court may order any amount for any period of time that the court deems reasonable. If you had a long-term marriage, meaning a marriage of 10 years or more, then your right to long-term support is automatically triggered. If your marriage was less than 10 years, the judicial officer still has the discretion to consider the facts and circumstances and consider whether or not to treat the marriage as a long-term marriage. This really depends on your case and your judicial officer. Usually, but not always, support in a short-term marriage goes for approximately ½ the length of the marriage. With a long-term marriage, support can, and often is, ordered longer than ½ the length of the marriage.
Again we give discretion to the Judge, in this one A LOT of discretion as there are a number of factors that have to be considered. Often people state the standard of living during the marriage, but this is just one of the so-called 4320 factors (that’s Family Code Section 4320, or the statutory authority to award post-judgment spousal support). In this case, there are 14 factors that the court can take into account. The factors that the court weighs (and that you should consider when negotiating with your spouse) are:
- The extent to which the party’s earning capacity will maintain the standard of living established during the marriage.
- What might the party receiving support need to do to develop marketable skills
- If the earning capacity of the party receiving support was impaired by any periods of unemployment during the marriage to devote to domestic duties.
- The party receiving support’s contributions to assist the party paying support to acquire education and enhanced earning capacity.
- The paying party’s ability to pay.
- Each party’s needs are based on the standard of living during the marriage.
- Each party’s assets, including any separate property assets they may have.
- The duration of the marriage.
- The party receiving support’s ability to be gainfully employed without interfering with the interests of the dependent children
- Each party’s age and health.
- Documented evidence of any history of domestic violence – Note, there is a public policy against a victim paying their abuser. Hence if an abused party would have to pay spousal support to their abusive spouse, generally the court will not order this. This does not extend to child support.
- Tax consequence to each party – Note, the party paying support can NO LONGER claim a tax deduction. The party receiving spousal support does NOT claim it as income (i.e. s/he does not pay taxes on the amount received).
- The balance of hardships to each party.
- The goal is that the party receiving support is self-supporting within a reasonable period of time.
- 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.
As you can see, beyond all the factors to be weighed, there is also a final catch-all factor in case there is something that doesn’t fall into one of the other categories.
For long-term support, the court cannot use the guideline formula. They can run a guideline formula, but the judicial officer must weigh the factors and apply them. This has to do with the fact that it can be ordered to be non-modifiable and last until one party re-marries (sometimes cohabitates) or dies, more on that below!
Once the Court weighs the 4320 factors, it also can set a time for the support to be paid. It can be ordered to be an ongoing obligation that continues until one party dies or remarries. It can be ordered to be on a step-down amount that is paid less over time until both parties reach a certain age. Or it can be ordered for a set amount of time-based on the needs and resources of a party. Again, the discretion of the court is something to consider.
The general rule is that it can be modified, but there has been a recent trend 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, 1. It can set a date in the future when jurisdiction over spousal support will terminate; 2. It can order it is not available at this time but reserve jurisdiction; or 3. It can set an amount that decreases over time and then potentially is set to zero but does not terminate it’s right to order it later. Often if it was a really long marriage, your judicial officer will not allow the parties to terminate their rights to ask for spousal support.
To change the court order regarding long-term support, the party asking to modify it does usually have to show a change of circumstances. This can be something like their income changing or the other party starting to make significantly more money.
Spousal support is a complicated issue, we get that. But it’s also not brain surgery. We’d be happy to talk to you and help you learn how to maximize the support paid to you or limit your financial exposure. One step at a time…. Nothing has to be decided overnight!