Thread: Spousal Support

How is spousal support calculated?

That's a great question Dahlia. It is important to distinguish between the two types of spousal support to answer that question. There is "temporary" suppport and "permanent" support. "Temporary" spousal support can be ordered while you are going through the divorce process (you have to file a motion to request it; it is not automatically ordered). When temporary support is ordered, the courts (and attorneys) use the same software we use to calculate child support (the two main software packages used in California are XSpouse and Dissmaster) to arrive at a temporary support number based on an adjusted gross monthly income for the parties.

When the divorce is finalized, either through settlement or by trial in front of a judge, "permanent" support is determined. If both parties are self-supporting, typically spousal support will simply be terminated (along with the court's ability to award spousal support). However, if permanent support is ordered, it typically going to be less than the "temporary" support that was ordered. Theoretically, the court is required to use the statutory factors enumerated in Family Code section 4320 to determine the amount of support (you can read the statute below).

I have litigated the issue of spousal support and we questioned the parties about their standard of living during the marriage, their "marketable skills," and all of the other factors. After all the testimony was presented, the court is supposed to make a determination based ONLY on the statutory factors. However, I highly suspect that in at least one of my cases (actually more than one), the court simply went back in chambers and used the support calculation to determine what the support order should be even though it is reversable error for the court to do so.

One of the important factors to look at in determining spousal support is the duration of the marriage (subsection (f) below). Typically, support is ordered for half the length of the marriage. For example, if you were married for four years, you might have a support order for two years. However, if you were married for over ten years, it is considered a marriage of long duration and support can potentially be ordered indefinately. You might see an open-ended order like this were the parties were married for twenty-five years and one of the spouses was a stay-at-home spouse and they now have no "marketable skills" to obtain employment. This might also be the case where one spouse is disabled and unable to work.

One other thing to consider is that spousal support is discretionary with the court, unlike child support, which is mandatory. Just because you may be entitled to spousal support, doesn't mean the court is necessarily going to order it on a temporary basis or a permanent basis. In fact, some judges seem to have a philosophical bent against spousal support, and try to avoid ordering it if possible.

I hope this answer was helpful to you. If you give me some gross monthly incomes, I can give you an idea of what the temporary spousal support order might be. Thank you very much for your question. Isaac


§ 4320 Fam. (current as of April 3, 2009)

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, 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 and the elimination
of the award in accordance with Section 4325.

(n) Any other factors the court determines are just and equitable.

(Amended by Stats. 1996, c. 1163, sec. 1; Stats. 1999, c. 284, sec. 1;
Stats. 1999, c. 846, sec. 1.5; Stats. 2001, c. 293, sec. 2.)

Spousal support is taxable to the person who receives it and deductible to the person who pays it, so long as certain requirements are met. For instance, there must be a court order for the support that is paid. The parties may choose to label their support "family support" to take advantage of its deductibility, especially if there is a big discrepancy between what the parties earn. Tax consequences may be considered by the Court, and certainly should be considered by you, in any award of support.

Thank you Isaac. Throughout the marriage his income was approximately $4000/mo and mine was $6000. He is still working, but making less and I have not worked since August. I am asking for spousal support - how do you think it would calculate out in this case?

Thank you Joan. When asked to report my income, is it optional to report my spousal support? If so, can you tell me when it would be in my best interest not to report it?

Are you looking for legal help with child custody or spousal support issues? Retrieve to scottfamilylaw.net.com for more information