Unable to Afford Spousal Support
This is a great, but very fact-specific question. However the answer is actually quite simple. First, you should know that virtually every single “payor” of spousal support says they can’t afford the payment, and some really can’t. And, you should know that virtually every single “payee” of spousal support complains that the amount they are paid is not enough to live on.
The brutal truth is that the Court probably doesn’t care if you think you can afford to pay spousal support or not. The fact is, in the court’s eyes, your financial responsibilities are paid in the following order of importance;
1. Child support;
2. Spousal support;
3. Everything else, including rent, utilities, car payments and even your house payment.
Simply put, what this means is it is more important to pay spousal support than pay your own utilities, buy food or pay your own rent. As a family law attorney I can’t tell you how many times I have been in court and heard judges say things like, “work harder”, or “it’s time to get a real job” to parties paying spousal support. I once represented a lady whose ex played guitar in a band. His only source of income was playing gigs in bars late at night. Our judge ordered him to pay support to which the gentleman exclaimed there is no way he could afford that payment. He told the judge that he couldn’t go out and look for a normal 9-5 job because he works until two or three am in the bars. Of course, the judge told the gentleman that his ex-wife’s needs were more important than his fledgling music career and maybe it was time to sell his guitar and “get a real job”.
Keep in mind, the amount of spousal support one pays or receives is generally based on the relative incomes of the parties. However, Family Code Section 4320 reads that a judge MUST take into consideration a list of factors before making “permanent” spousal support orders. Again, if you have been reading other information on my website, you already know there is no such thing as “permanent” spousal support, but the code suggests that a judge must consider all of the 4320 factors before making “long-term” spousal support orders. Those 4320 factors include:
- (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 dom estic 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 4325.
- (n) Any other factors the court determines are just and equitable.
These factors can be tricky and complicated. Make sure you get sound professional legal advice before attempting to argue these factors on your own in court. If you have any questions on these factors, spousal support in general, or would like to discuss how these factors may affect the amount of money you may have to pay, or receive for spousal support, feel free to call us for a free consultation.