What Factors Are Used to Determine Spousal Support?
When getting a divorce or legal separation, you should talk to a divorce lawyer about how you and your former partner will separate community property and discuss the issue of spousal support or alimony. There are two basic types of spousal support, temporary (pendente lite) spousal support and permanent spousal support.
You can ask for spousal support once you file your case. Parties who receive and provide spousal support are required to complete financial disclosures to the court. These documents, sometimes called preliminary financial declarations, lay out each party's assets, debts, expenses and monthly sources of income.
You can ask for temporary spousal support while you are waiting for the final judgment in a divorce case. You can also ask for temporary support in a legal separation case or a domestic violence restraining order case.
Temporary support is meant to keep both parties in relatively equitable living conditions until the court has determined the permanent support award.
Temporary support serves a different purpose than permanent spousal support. This means the factors considered in an award for permanent support do not control on the issue of temporary spousal support. Nothing prevents a trial court from considering these factors when awarding temporary support. Typically, the court will use the computer programs used to calculate child support in making an order for temporary spousal support.
The trial court has discretion that is unrestricted by any statute to determine the propriety and amount of temporary support. The court typically bases the award broadly on the supported party's need and the supporting party's ability to pay. Temporary support ends as soon as a divorce becomes final.
When setting permanent support, the court considers the following factors. I am always careful in explaining that the term permanent spousal support should not give the impression that it will be a lifetime obligation. The court has made clear that the goal of the State of California is that the supporting spouse shall be become self-supporting in a reasonable amount of time. A reasonable amount of time is generally considered to be half the length of the marriage, except in the case of a long duration marriage which is defined as more than 10 years.
These are listed in California Family Code section 4320. As you can imagine, each of the factors can have a blog post of its own. The factors include the following:
• The marketable skills of the supported party, the job market for these skills, the expenses needed to develop those skills and the possible need for the supported party to get retrained.
• The extent to which the supported party's earning capacity is impaired by the time he or she spent to engage in domestic duties.
• The extent to which the supported party contributed to the other party's success.
• The ability of the supporting party to pay spousal support.
• The needs of each party based on the standard of living established during the marriage.
• The obligations and assets of each party, including each party's separate property.
• How long the marriage lasted.
• The ability of the supported party to work without interfering with the interests of dependent children.
• The age and health of the parties.
• Documented evidence of domestic violence between the parties.
• The criminal conviction of an abusive spouse.
• The tax consequences to each party.
• The balance of hardships to each party.
• The goal that the supported party shall be self-supporting within a reasonable period of time. The exception is a case of a marriage that lasted over 10 years. See California Family Code section 4336. So, most court will make an order for ½ the length of marriage on a short-term marriage but the court does have discretion to deviate from that timeline. In a long-term marriage, the court cannot use this same benchmark but there is case law that discusses the issue when one spouse does not try to become self-supporting.
• Any other factors the court deems just and equitable.
A permanent support award is meant to provide the supported spouse with enough income for his or her basic needs. The permanent support ensures that the supported party will have a lifestyle that remains the same after the divorce. The permanent support award can be affected by the length of the marriage. The court may not rely on local court standardized support payment schedules and computer software programs to set permanent support orders. It must use the section 4320 factors. This is one of the most widely litigated topics in the family law court. The court has a lot of discretion in this area and experienced representation is vital.
The court will order a wage garnishment to be issued and served upon the supporting party. The order includes a start date for the issuance of support. The employer of the supporting party will take the support payments out of that person's wages. If one or both of the parties are self-employed, there is a potential for funds and documents to go missing. In such cases, one or both parties may hire forensic accountants. These accountants look for hidden earnings. They may testify in court regarding their findings and the income and behavior of one or both parties.
If the employer of a supporting spouse does not honor the wage garnishment, the supported party should write a letter to the employer. If the supported spouse does not receive the money in a reasonable amount of time, he or she should sue the employer. An employer that does not withhold spousal support payments may be legally responsible to pay them. Past due spousal support accrues interest at the rate of 10 percent a year. The employer or delinquent spouse should be motivated to pay. A family law attorney can assist you with filing the necessary paperwork for collecting on delinquent spousal support payments.
At the Law Offices of H. William Edgar, we have handled all aspect of the spousal support issue. We have tried numerous cases to conclusion at the trial court level. We have also handled family law appeals in this area, successfully overturning a trial court decision. Please contact the Law Offices of H. William Edgar for a free initial consultation to discuss spousal support and any other family law or divorce related issue. Please visit our website at EdgarFamilyLaw.com or call 888-251-9618.