When a couple legally separates or divorces, one spouse or domestic partner can be ordered to pay the other spouse or domestic partner a certain sum of money every month. This is known as “spousal support.” Spousal support can become a highly contentious issue amongst legally separating or divorcing couples.
Temporary Spousal Support
California law permits a judge to award temporary spousal support, otherwise known as “pendent lite” spousal support, during the pendency of the legal separation or divorce proceeding. Temporary spousal support may be ordered in any amount based on the need of one spouse or domestic partner and the other spouse or domestic partner's ability to pay.
The purpose of temporary spousal support is to help spouses or domestic partners maintain their standard of living in the short-term while the final division of the marital estate is worked out.
Determining Temporary Spousal Support
Many courts use a mathematical formula, known as the Statewide Uniform Guideline, in determining temporary spousal support. In cases not involving child support, this formula provides that the recipient of temporary spousal support is entitled to 40% of the net income of the payer less 50% of the net income of the payee, adjusted for tax consequences. The courts may adjust this formula if special circumstances are present such as when a spouse or domestic partner has support obligations arising from a prior relationship or unusually high monthly expenses.
Modifying or Terminating Temporary Spousal Support Orders
Temporary spousal support may be modified by the court at any time. If a spouse or domestic partner needs to modify the temporary spousal support order and does not have the consent of the other spouse or domestic partner, he or she will need to file for a modification and be prepared to show the judge why the circumstances warrant a modification.
Temporary spousal support may only be terminated by (1) issuance of a judgment; (2) dismissal; (3) expiration under its own terms; (4) the remarriage of the recipient; (5) death of either party; or (6) court order.
Permanent Spousal Support
Permanent spousal support, otherwise known as “long-term” spousal support is spousal support that is awarded in the final judgment of legal separation or dissolution. Under California law, a judge may order a spouse or domestic partner to pay permanent spousal support to the other spouse or domestic partner in any amount, and for any period of time that is just and reasonable. This gives judges a great deal of discretion when establishing the final, permanent order. Because of this discretion, it's important to understand your options and to leverage your position throughout the process.
Determining permanent spousal support requires much more data, evidence, and a complete understanding of a couple's economic history. California law does not award permanent spousal support based on the Statewide Uniform Guideline. Rather, the court will analyze and weigh various factors to determine an equitable arrangement.
Factors that Influence Permanent Spousal Support
The court will weigh certain factors, known as the Family Code §4320 factors when considering permanent spousal support. Some of these factors include the following:
- The duration of the marriage.
- Each spouse or domestic partner's needs based on the standard of living established during the marriage.
- The earning capacity of each spouse or domestic partner necessary to maintain a similar standard of living established during the marriage taking into account the marketable skills of the supported spouse or domestic partner, the job market for those skills, the length of time and costs required of the supported spouse or domestic partner to develop identified skills or retrain in order to obtain more marketable skills, and the extent to which the supported spouse or domestic partner present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage.
- The extent to which the supported spouse or domestic partner contributed to the education, training, and career of the supporting spouse or domestic partner.
- The assets and debts of each spouse or domestic partner, including their separate property.
- The ability of each spouse or domestic partner to pursue employment without interfering with dependent children.
- The health and age of each spouse or domestic partner.
- Tax-related burdens that would occur as a result of spousal support.
- Whether or not there is a history of domestic violence in the family.
- The supporting spouse or domestic partner's ability to pay the supported spouse or domestic partner.
Duration of Permanent Spousal Support Orders
Generally, if permanent spousal support is awarded at all, the duration of the support is linked to the length of the marriage. For shorter marriages lasting ten years or less, the duration of spousal support will typically be one-half of the years of the marriage. The parties may argue for the judge to deviate from this default guideline.
For longer marriages lasting ten years or more, the judge may decline to set a definitive end date to the support but will leave an order in place with the expectation that if and when circumstances change, the parties can return to court for a modification or termination.
The length of the marriage officially begins at the wedding date and ends on the “date of separation.” When the court analyzes the length of the marriage, the judge can take into account periods of time when the spouses or domestic partners were married or in a domestic partnership but were not living together.
Modifying or Terminating Permanent Spousal Support Orders
A signed court order is legally binding. But over time, circumstances can change. Modifications to and termination of permanent spousal support orders are possible, subject to the limits imposed by the law, the permanent spousal support order itself, or the agreement of the parties regarding permanent spousal support. To obtain a modification of permanent spousal support, the spouse or domestic partner requesting the modification must show a material change of circumstances since the order was made, and the court must consider the same factors used in making the original permanent spousal support order.
Possible significant “changes in circumstances” include but are not limited to the following examples:
- The supported spouse or domestic partner no longer needs financial help.
- The supporting spouse or domestic partner has suffered a financial setback and cannot afford the amount of support.
- The supported spouse or domestic partner is not making a good-faith effort towards becoming self-sufficient.
- The supported spouse or domestic partner remarries or enters a new domestic partnership and the support needs to be terminated.
- Child support obligations have ended.
Spouses or domestic partners who are able to cooperate can modify the agreement together and simply seek a new signed court order subject to the provisions outlined above.
A spouse or domestic partner's permanent spousal support obligation must terminate on either party's death or on the supported party's remarriage unless the spouses or domestic partners agreed otherwise in writing.
Duty to Become Self-Supporting
California law has mandated that it is the goal of the supported party to become self-supporting within a reasonable period of time. Because of this, a court may, in making a spousal support order, advise the supported party that he or she should make reasonable efforts to assist in providing for his or her support needs, taking into account the circumstances considered by the court under Family Code §4320, unless in the case of a marriage of long duration, the court decides the warning is inadvisable. This is known as a “Gavron Warning.” This “warning” may be provided as part of a temporary spousal support order, by agreement of the parties, notice from the supporting party, or as part of the permanent spousal support order.
Contact a Spousal Support Attorney in Contra Costa CA
Spousal support can be a complex and taxing issue on the individuals involved. It is important to have a resourceful, compassionate legal representative helping and guiding you through the process. Jaime L. Kissinger, spousal support attorney, has the insight, experience, and empathy required. For an initial consultation, contact Jaime L. Kissinger today.