Family Code 4320
Family Code 4320 Spousal Support Factors in California
Factors which affect how Spousal Support is Calculated
Orange County, California
Spousal support, also known as alimony, is a court ordered obligation for one spouse to financially support the other in the case of a legal separation or divorce. We, Family Law attorneys and Judges, use a software application to determine child support, and although this program “appears” to provide a proposed or estimated amount of spousal support that may be ordered, it is not California Law regarding spousal support, and NOT the manner in which spousal support values are determined.
SKILLS OF THE SUPPORTED PARTY: What skills useful for earning an income does the spouse requesting support have? How marketable are these skills? Recent history of employment is equally a very important factor. What resources and timeframe are required to develop the required skills? Is the requesting spouse almost finished with an education that is likely to increase their earning potential, or how much time will that education take to complete?
THE EXTENT TO WHICH THE SUPPORTED PARTY CONTRIBUTED TO THE ATTAINMENT OF AN EDUCATION: Did the supporting spouse assist the payor in the attainment of an education, training or building of a career that benefited the payor financially?
ABILITY OF THE SUPPORTING PARTY TO PAY SPOUSAL SUPPORT: Simply, can the supporting spouse pay? This may seem like a simple question as they have a job, they have income, they can pay, right? Not so fast. There are countless possible factors that can affect this issue. We had a case where our client earned five times more than the requesting spouse, but the judge ordered against spousal support. There were several factors in the court’s decision, but one of the main reasons was that the potential payor of spousal support had sole custody of the parties’ children and had never taken child support from the requesting party. Further, the potential payor had taken responsibility for all the parties’ community debt.
THE NEEDS OF EACH PARTY BASED ON THE STANDARD OF LIVING ESTABLISHED DURING THE MARRIAGE: This factor has two different “meanings,” because the term “needs” can be used in different ways. One, true needs, how much money is needed to support the necessities of life: housing, food, health costs, etc. However, we had a case where our client lived a very nice lifestyle, financially. We successfully argued that in a case like that, her needs included that money necessary to support the continued lifestyle enjoyed during the marriage. Our client was able to shop freely, spend without concern, regularly get her nails and hair attended to, as well as eating virtually every meal outside the home in expensive restaurants just as she was used to. Although those types of expenses are not commonly described as “needs,”, but when this was the “lifestyle” during the marriage, and the payor has the ability to maintain that type of lifestyle with reasonable spousal support, under those circumstances, then the court is likely to order an amount of support to continue that (or similar) type of lifestyle.
THE OBLIGATIONS AND ASSETS, which include each parties’ separate property and separate debt. Simply stated, if one party is wealthy and carries little debt, that will be a factor. If the wealthy party is the payor, the Court is likely to error on the side of a higher spousal support payment. However, if the receiving spouse has separate property assets that are quite valuable, the Court may likely error on the side of a lower support payment, or possibly no spousal support at all. Also, for example purposes, say one party to a divorce takes on all the community debt of the couple because the other is unable to service that debt. Then, the Court may very well error on the side of a lower spousal support payment to the party who did not take the debt because their debt is being paid by the payor and therefore, the receiving spouse is also financially benefited in that way.
LONG TERM VS SHORT TERM MARRIAGE. The length of the marriage is a serious and preliminary factor that has an effect on the duration of the payment of spousal support. In California, if the length of your marriage is less than 10 years, your marriage is described in the law a being a “Short-term” marriage. Generally speaking, and it is NOT always the case, the duration of payment of spousal support will be half the length of the marriage. However, if your marriage lasted 10 years or longer, your marriage is known in the law as a “Long-term” marriage. When determining spousal support in long-term marriages, the law provides that a Judge shall not set a “termination” date on payment of spousal support. That does not mean that spousal support will be paid forever, it simply means that a judge will not set the termination date at the time he or she sets the spousal support award. In fact, there are only two ways to determine long-term spousal support amount, 1) an agreement between the parties, or 2) it is determined after a full hearing on the issue.
EMPLOYMENT AND KIDS’ BEST INTEREST: If the supported spouse also has the custody of children, the Court will consider whether taking work will negatively affect their ability to care for the children. This issue is also balanced with the need to become self-supporting, and an almost universal belief that children are not harmed, and likely benefited, by attending preschool, which gives the supported spouse time to enter the workforce, at least on a part time basis.
AGE, HEALTH: The health, mobility, and age of each party may be important factors in the amount and duration of a spousal support award. If a party is paying spousal support to the other, and the receiving spouse becomes unhealthy to the point of inability to work, or such a reduction in ability to work or otherwise earn an income, it could result in spousal support payments being extended to a longer period of time. If the payor of spousal support is injured, experiences some health issues that limit the payor’s ability to work or earn, then the length of time spousal support is paid may be shortened in duration.
DOMESTIC VIOLENCE AND MORE IMPORTANTLY, CRIMINAL CONVICTION OF SPOUSAL ABUSE: Domestic violence, and especially a conviction for committing Domestic Violence against your spouse, is a huge factor in spousal support, but not necessarily in the way you might think. It may not increase the amount of spousal support paid, and unless the Domestic Violence resulted in injuries that resulted in one party’s inability to work, it is not likely to extend the length of time spousal support is paid. However, there is a little known Family Code Section that says that if the party requesting spousal support has been convicted of Domestic Violence against the potential payor, it is PRESUMED that the spousal support should be set at ZERO. Now, this is a tricky code because the law does not say that there will NOT be spousal support, it simply provides a foundational presumption that there should not be any spousal support, and it would be the burden of the party seeking spousal support (who is also the Domestic Violence offender) to prove they should still receive spousal support even in the light of the conviction. This is often a difficult burden to overcome. Simply put, in those circumstances when there has been Domestic Violence perpetrated against the paying spouse, the court has the authority to reduce or completely eliminate spousal support to the offending spouse.
TAXES: Divorce may affect the parties’ taxes. The court will take into consideration any immediate and specific tax consequences resulting from or connected with a divorce or legal separation, when determining spousal support.
BALANCE OF HARDSHIPS: One of the Court’s responsibilities is to balance the hardships between the parties. This means any and all financial hardships. The purpose is quite simple, even if the relative incomes of the parties seem to dictate a certain level of support, if after a balancing of the hardships, the proposed spousal support amount will unduly burden the payor, the spousal support may very well be reduced. Equally so, if the proposed spousal support amount will still not pay for the necessities of life of the receiving spouse, the spousal support amount may well be increased after the hardships are compared.
DURATION OF SUPPORT: There are countless factors that affect the length of time spousal support is to be paid. As mentioned above, the most important factor is the length of the marriage. (see above) However, there are numerous other factors, such as the age and relative health of the parties. Very generally speaking, the Court will expect the supported party to reach a point where they are self-supporting in a “reasonable” amount of time. Well, what does that mean? Just for example purposes, if a couple has been married for 45 years, and the receiving spouse is 72 years old and physically unable to work, then spousal support will generally be paid for a longer period of time than say for example, a couple that was only married for 12 years and both parties are well educated, healthy and able to enter the workforce. Here, the word “generally” is important because there are always a nearly infinite number of other factors that may and will likely affect this determination. For example: Is one party or the other leaves the marriage with most of the familial debt, and is that debt significant? Will that debt limit the ability of the payor spouse to pay spousal support to the other? (See balance of Hardships above) Did one of the parties recently receive an inheritance, winnings, or a financial windfall of some form or another? Are the relative education levels of either or both parties a factor? Spousal support is one of the most complicated and convoluted issues we deal with in Family Law. If you have any questions with regard to your specific circumstances, feel free to call us for a free initial consultation.
OTHER FACTORS: The above are the 14 main factors the court must consider before making a ruling on long-term spousal support. However the court will also consider any other factor which it deems relevant, reasonable, and necessary for determining spousal support. Each case may have very different and unusual factors while some may have no additional factors at all.