Spousal support is the term used for alimony in California. Alimony is money that one spouse pays to the other to help support them until they can support themselves at the standard of living they had during the marriage.
Alimony depends on a number of factors; during the divorce proceedings (before a judgment of divorce is entered), courts will normally order spousal support based on a formula adopted by the county (called “temporary” or ‘pendente lite” spousal support). The amount is determined by child support calculation programs which have a spousal support component. The actual amount of support is based on both parties’ earnings (or sometimes imputed earnings if one party is not working to his or her ability); some deductions such as health insurance, mandatory retirement, tax deductions, and other guideline factors are considered.
Once the judgment of divorce is entered, “long term” or “permanent spousal support” needs to be determined.
Alimony can be ordered (or agreed to by the parties) which can vary in duration depending on the length of marriage or agreement reached by the parties. A short term spousal support would last ½ the length of the marriage when the marriage is less than 10 years while a long term spousal support lasts until the receiving spouse can support themselves in the standard of living experienced during marriage. There are thirteen specific factors specified in Family Code 4320 of the California Family Law to determine the amount of spousal support.
Permanent Spousal Support Factors:
- Standard of living established in marriage when possible – often the funds are not there for both spouses to continue the life style they had during the marriage.
- Each parties Ability to earn including the skills of the supported party; current job market and time/cost to acquire the required education or training associated with these skills.
- 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 for domestic duties.
- The supported party’s contribution to the education or training of the supporting party.
- The ability of the supporting party to pay alimony.
- The needs of each party.
- The obligations and assets of both parties; including separate property assets.
- The duration of the marriage the longer the marriage the longer the support obligation.
- The ability of the supported party to work without unduly interfering with the interests of dependent children.
- The age and health of the parties
- Documented history of Domestic violence
- The balance of the hardships to each party
- The goal of the supported party to become self supported
- The criminal conviction of an abusive spouse
- Any other factors the court deems equitable.
The courts must replace the temporary spousal support formula with the above mentioned Family Code 4320 Factors when determining long term alimony. With the ambiguity in the 14th clause, spousal support determination can quickly turn into a costly endeavor in the courts.
The parties, both when negotiating with attorneys or among themselves, often use the formula support calculator to help them reach an agreement with regards to spousal support. If the parties mutually agree to a spousal support amount on their own that is fair and equitable, the court will allow their agreement to be made as part of the divorce judgment and will not second guess the parties.
Beginning Jan. 1, 2019, alimony or separate maintenance payments are not deductible from the income of the payer spouse, or includable in the income of the receiving spouse, if made under a divorce or separation agreement executed after Dec. 31, 2018.
Family Code 4320.
In ordering spousal support under this part, the court shall consider all of the following circumstances:
(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) All documented evidence of any history of domestic violence, as defined in Section 6211, between the parties or perpetrated by either party against either party’s child, including, but not limited to, consideration of:
(1) A plea of nolo contendere.
(2) Emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party.
(3) Any history of violence against the supporting party by the supported party.
(4) Issuance of a protective order after a hearing pursuant to Section 6340.
(5) A finding by a court during the pendency of a divorce, separation, or child custody proceeding, or other proceeding under Division 10 (commencing with Section 6200), that the spouse has committed domestic violence.
(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 4324.5 or 4325.
(n) Any other factors the court determines are just and equitable.
(Amended by Stats. 2018, Ch. 938, Sec. 1. (AB 929) Effective January 1, 2019.)