Orange County Spousal Support Attorney
The intent of “Spousal Support” is to attempt to help both parties maintain the lifestyle they shared during their marriage. Also, to keep the parties at a relatively equal lifestyle. But before you start counting your money, it’s important to do the math to determine what is realistic to run two separate households.
The first thing that must be noted with regard to the issue of spousal support is that it’s not a gender issue. The larger wage earner can be ordered to pay spousal support, whether it’s husband-to-wife or wife-to-husband. The conflicts often occur because the expectations of each party don’t match. The payer of spousal support typically argues, “That is too much, I can’t afford to pay that” and the receiver of support countering with, “That’s not enough, I can’t live on that.” This is where we come in.
Who Pays Whom?
As stated above, the “larger wage earner” will probably have to pay spousal support to the lower wage earner.
How Much Will I Pay or Receive for Spousal Support?
Speaking generally, if you earn approximately the same income as your spouse, there will be no spousal support paid. But, if you earn 25% more than your spouse, you may have to pay some amount. If you earn four times what you spouse earns, you will probably be ordered to pay a substantial portion of your income to your spouse for spousal support.
To find out, contact us and we’ll be happy to run the numbers for you as part of a free consultation.
How Spousal Support (Alimony) is Determined in 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. Divorce and Matrimonial Lawyers are constantly asked, “How much will I receive (or pay) for spousal support?” In California, most people are aware that there is a computer program that we Family Law attorneys and Judges use to determine child support. Most people are also aware that when calculating child support with the use of this program, the program also sets forth a calculated outcome for spousal support. Although this program “appears” to provide a proposed or estimated amount of spousal support that may be ordered, don’t be fooled, this is NOT California Law regarding spousal support, and this program is NOT the manner in which long term spousal support values are determined. Read more about how Spousal Support is calculated in California here.
Two Ways to Determine Spousal Support:
For much greater detail on the preliminary issues in determining spousal support, please see the several other blog posts including “Length of Marriage & its profound effect on Spousal Support.” But, in more simplistic terms, the reader should be made aware at the outset that there are only two ways to determine a long-term spousal support amount, 1) an agreement between the parties, called a “stipulation” or 2) the amount and duration of spousal support is determined after a full hearing before a Judge. More specifically, if the issue of Spousal support is to be litigated before a court, California Family Code Section 4320 dictates that the Judge (court) MUST take into consideration ALL of the F.C. § 4320 factors before making an order for long term spousal support. All of these factors are listed a described in great detail below.
Length of Marriage Defined:
Very generally speaking, the “length of the marriage” does not have as much as effect on the amount of spousal support one will receive as much as it will have a profound effect on the length of time spousal support will be paid, or received. The length of marriage is a preliminary factor that must be determined. The length of marriage is from the actual date the parties married, until the date they separated. The issue of the “date of separation” is very technical and can be one of the most profound, complicated and decisive factors in a divorce case. For a much greater description and analysis of the date of separation, please see the Blog post entitled “Length of Marriage & its profound effects on Spousal Support.” After the length of marriage is determined, it is important to understand that in California, if the length of your marriage is less than 10 years, generally speaking, the duration of spousal support will be “half” the length of the marriage. However, if your marriage lasted 10 years or longer, 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. For much more detail on this issue, please see the Blog post on this site entitled, “Length of Marriage & its profound effects on Spousal Support” and if you have additional questions, please feel free to call us, we always provide free initial consultations. The Judge shall take into consideration all of the following factors when making an order for long term spousal support:
Family Code § 4320 Factors
1. – 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:2. – 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. What skills useful for earning an income does the spouse that is requesting support have? How marketable are these skills? Recent history of employment is a huge 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?3. – 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. If the supported spouse was a stay-at-home parent, the Court will also consider the time the spouse spent away from employment to concentrate on domestic duties. For example it is not uncommon for one spouse to stop working to help raise or take care of kids while the other parent worked. Keep in mind that even if the supported spouse spent many years away from the work force, but is otherwise healthy and able to obtain employment, the court will expect that supported spouse to become self-supporting in a “reasonable amount of time”.
This can be a very tricky issue, if you have any further questions on this particular issue, feel free to call our offices for a more complete explanation taking into consideration your specific circumstances. We always provide free initial consultations.
4. – 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. Did the supporting spouse assist the payor in the attainment of an education, training or building of a career that benefited the payor financially?5. – 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. 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. I had a case where our client earned five times as much as the requesting spouse, but the judge ordered NO 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 on all the parties’ community debt.6. – The needs of each party based on the standard of living established during the marriage.
This factor has two different “meanings.” 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 good 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, and regularly get her nails and hair attended to as well as eating virtually every meal outside the home in upscale restaurants. She had someone permanently on hand to clean the home, do the necessary shopping, and other help to care for the children in the home (his, not her birth children). Although those types of expenses are not commonly described as “needs”, when this was the regular “lifestyle” during the entire length of their marriage, and the payor has the ability to maintain that type of lifestyle, under those circumstances, then the court is likely to order an amount of spousal support to continue that (or similar) type of lifestyle.7. – The obligations and assets, including the separate property, of each party. This includes 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 err 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 err 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 err 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.8. – The duration of the marriage. There are countless factors that affect the length of time spousal support is to be paid. But, as mentioned above, the length of a marriage is the most important factor when determining the length of time one party will pay or receive spousal support from the other. For great detail on this particular Factor, please see another Blog post on this website entitled: “Length of Marriage & its profound effects on Spousal Support.” But, in more simplistic terms, in the case of a short term marriage, defined as a marriage which lasted less than 10 years, the rule is that the Court will generally order spousal support to be paid for half of the length of the marriage. For example, if a married couple was married for 5 years, the Judge would almost invariably order spousal support to be paid for about 2 ½ years. On the other hand, for a long term marriage lasting more than 10 years or more, absent an agreement between the parties, the court in California does not have the authority to set an end date to spousal support. This does not mean that spousal support will be paid forever; it simply means that spousal support will be paid for an “indefinite” period of time. Again, this is a complicated issue and needs much greater explanation if you expect to understand this factor fully. Again, for a greater understanding on this issue, please see another Blog post on this website entitled: “Length of Marriage & its profound effects on Spousal Support.” Also, if you have any questions with regard to your specific circumstances, feel free to call us. We always provide free initial consultations over the phone.9. – 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. What skills useful for earning an income does the spouse that is requesting support have? How marketable are these skills? Recent history of employment is a huge 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?10. – Employment of the custodial Parent and Best Interest of the Children: If the supported spouse also has the custody of children, the Court will consider whether taking on work, either part or full time, 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.11. – The age and health of the parties. The health, mobility and age of each party may be important factors in the amount and duration of a spousal support award. Simply put, if a party is paying spousal support to the other, and the other spouse becomes unhealthy to the point of inability to work, or such a reduction in ability to work or otherwise earn an income, 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 payer’s ability to work or earn, then the length of time spousal support is paid may be shortened in duration.12. – Documented evidence of any history of domestic violence, as defined in California Family Code section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from Domestic Violence (DV) perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party. You might notice another factor in this list regarding Domestic Violence, but in that factor, it specifically mentioned “conviction” of domestic violence against the other party. That means a conviction in “criminal court”. This Family Law Code 4320 Factor does not require that level of prosecution; it is slightly different in that the court will be very interested in any domestic violence committed by either party against the other. If the paying spouse committed domestic violence against the party to receive spousal support, whether or not that Domestic Violence had any effect on the receiving parties ability to work or earn an income, the court is likely to take that into consideration and when issuing spousal support orders by either increasing the support amount, or the length of time such support shall be paid. If on the other hand, the payor has suffered domestic violence at the hands of the spouse that is asking for spousal support, the court is likely to take that factor into consideration and likely reduce the amount of support paid to the violent party, reduce the length of time such support may be paid, or even outright deny spousal support from the outset. The other factor below discussing a “conviction” of domestic violence of one party against the other relates to another Family Code section that allows the judge to deny a request for spousal support to be paid to a party “convicted” of domestic violence against the payor of spousal support.13. – The immediate and specific tax consequences to each party.
Divorce will have an effect on both of the divorcing parties’ taxes. The court will take into consideration any immediate and specific tax consequences resulting from or connected with the divorce or legal separation, when determining spousal support.
14. – The balance of the hardships to each party. 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.15. – 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.
This factor really is as simple as it seems.
This factor brings together several simple theories; it is the Public Policy of the State of California to expect each party to become self-supporting within a “reasonable” amount of time. In California, for short term marriages, that “reasonable” amount of time is within in a period of time equal or less than half the length of marriage beginning after the parties separate. Keep in mind, that is the GENERAL RULE, and this factor specifically warns that the court has the authority, even in short term marriages, to order spousal support for a length of time greater than half the length of marriage. But, in the case of a long term marriage, greater than 10 years, then that general rule of half the length of the marriage does not apply.16. –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.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 parties inability to work, it is not likely to extends 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 Domestic Violence 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 of completely eliminate spousal support to the offending spouse.17. – Any other factors the court determines are just and equitable. The above are the main factors the court must consider before making a ruling on long-term spousal support. However the court will also consider any other factors which it deems relevant, reasonable and necessary for determining spousal support. Each case may have very different and unusual factors. Some may have no additional factors at all. As always, if you have any further questions on spousal support, any of these particular factors, or on the subject of spousal support in general, please feel free to call our offices for a more complete explanation, taking into consideration your specific circumstances.