Spousal Support, sometimes referred to as Alimony in other jurisdictions, is a Court ordered payment by one spouse to the other for use in meeting their financial needs. There are two types of spousal support: Temporary Spousal Support and Long Term (aka Permanent) Spousal Support. There are significant differences to each –
Temporary Spousal Support
The purpose if Temporary Spousal Support is to provide a level of support to the supported spouse while the divorce case is pending before the Court (i.e. until all other issues in the divorce are resolved, either by settlement or trial). This amount is generally calculated using a formula set forth by the Court, known as a “Guideline Calculation”. There are a number of computer programs approved by the Court for doing this calculation, the same program used to calculate Child Support, and your attorney can run these calculations for you to estimate your Spousal Support entitlement, or exposure. Temporary Spousal Support remains in place until all other matters are resolved, however, it is subject to modification upon a proper showing. Oftentimes, if one spouse is not employed, or underemployed, the Court will issue a Seek Work Order, or entertain an argument to “impute income” to that party (meaning the Court will calculate the support based on that that party has the ability and opportunity to be earning, rather than what they are actually earning).
If you are in need of Spousal Support, it is important to consult with your attorney right away and take action to request your Temporary Spousal Support right away. The reason for this is the Court will, generally, only award support retroactive to the date you file your Request for Order asking for the Temporary Spousal Support. So each month you delay in requesting the support you are entitled to is a month you will not receive support. Conversely, if you expect your spouse to seek Spousal Support, but he or she is unemployed or under-employed, you will need to start planning how to properly respond to that request with your attorney early in the case.
Long-Term/Permanent Spousal Support
The main difference between Temporary Spousal Support and Long-Term/Permanent Spousal Support is that there is no formula or “Guideline Calculation” for Long-Term Spousal Support. Instead, the Court will evaluate the fourteen factors set forth in Family Code Section 4320 in determining the amount, and duration of Long-Term Spousal Support. These include:
- 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:
- 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.
- 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.
- 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.
- 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.
- The needs of each party based on the standard of living established during the marriage.
- The obligations and assets, including the separate property, of each party.
- The duration of the marriage.
- 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.
- The age and health of the parties.
- All documented evidence of any history of domestic violence between the parties or perpetrated by either party against either party’s child.
- The immediate and specific tax consequences to each party.
- The balance of the hardships to each party.
- The goal that the supported party shall be self-supporting within a reasonable period of time.
- The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award.
- Any other factors the court determines are just and equitable.
As for duration, there are two separate scenarios: a marriage of less than ten years and a marriage of more than ten years. For a marriage of less than ten years, the Court will “generally” find that the duration of spousal support is for half the length of the marriage, though it is not required to limit it to that length if other factors justify a longer, or shorter duration. For a marriage of more than ten years, there is no such suggestion as to duration and the Court is free to pick any duration it feels is appropriate, or set an amount and leave the issue of duration open ended, subject to a party (usually the payor) asking the Court to modify or terminate spousal support at a later date. In either situation, regardless of the length of the marriage, spousal support will terminate upon the remarriage of the supported party, or upon the death of either party, automatically, by operation of law.
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