The courts in the State of California may award support to either spouse where there is a need for support. The marital misconduct of either spouse is not a consideration when determining the amount of spousal support, as California is a no-fault state.
There are two kinds of spousal support. “Temporary” and “Permanent.” If you are mediating, you may not delineate between the two, but it is still essential to your ability to negotiate on your behalf to understand what a court must consider.
Temporary support is intended to cover the period from separation to the date of the divorce. Most mediators rely upon the same program the court uses to calculate Temporary spousal Support; it is called the “DissoMaster.” If the income of the parties is not in dispute, this calculation is pretty straightforward. However, if either of you has irregular income, equity pay, cash remuneration, or other types of income less easy to quantify from paystubs or your taxes, you may need the assistance of a Certified Divorce Financial Analyst to quantify the income available for support. Temporary spousal support is usually the high watermark intended to maintain the marriage’s standard of living as best as possible.
The goal of “Permanent Spousal Support” is to help the spouse receiving the support to become self-supporting within a reasonable period of time. Generally, the courts consider one-half the length of the marriage to be the maximum length of time a supported spouse should have to become self-supporting in a marriage of less than 10 years. If the parties had a long-term marriage (defined as a marriage of 10 years or more), the duration of spousal support is very fact specific. There is a misconception that after a 10-year marriage, spousal support is permanent. It could be, but there is no such guarantee. Unless you negotiate your rights away, the court’s jurisdiction to award support is permanent, but the amount of support and its necessity is based on a range of factors defined by the Family Code.
The court is not allowed to use the DissoMaster in calculating permanent support. In re Marriage of Olson (1993) 14 Cal.App.4th 1, a permanent spousal support order based on the Dissomaster was reversed because the judge failed to consider all 14 factors.
What factors must the court consider in determining the amount of an award of spousal support? California Family Code section 4320 sets out the factors, and here they are:
“California Family Code section 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 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.
What will automatically terminate spousal support?
The death of either spouse
The receiving spouse remarries
The receiving spouse is able to earn a self-supporting income at the standard of living established during the marriage
The parties negotiate an end date
Here is a response to common FAQs about spousal support written by Attorney Katharine Hooker of Family Law Group, LLP. This article will perhaps answer even more of your questions:
By now, you should be gaining an understanding that spousal support has a lot of variables. Therefore, if you are mediating your divorce, you should work with your consulting attorneys for guidance on this complex matter before finalizing your Marital Settlement Agreement. Some couples bring their attorneys into the mediation room to help negotiate on their behalf aor to break an impasse in the mediated negotiations.
Divorce can be complex and emotionally challenging. I would encourage you to trust that with the assistance of a skilled mediator and a consulting attorney who is knowledgeable about the law and the cost benefits of a mediated settlement you will save time, stress, acrimony, and of course a whole lot of money you will otherwise never get back.