Temporary Spousal Support
California Family Code section 3600 gives the court authority to order temporary spousal support (also known as pendente lite support). Temporary spousal support is paid during divorce or legal separation proceedings before a final judgment is entered.
In San Diego, temporary spousal support is generally calculated by using the Dissomaster software program, which bases support on the spouses’ respective incomes and some expenses such as health insurance and mandatory retirement deductions.
Temporary spousal support is intended to allow the spouse with fewer financial resources to temporarily maintain the approximate standard of living enjoyed during the marriage. In reality, it is often not possible for both spouses to maintain the marital standard of living after divorce or separation because economies of scale make it more expensive to live separately.
Permanent Spousal Support
Permanent spousal support is paid after the divorce or legal separation judgment is final. Although the court may use the Dissomaster software to calculate a general figure, a number of other factors must be considered as well.
The court is required to consider the factors set forth by California Family Code section 4320 when making an award of long-term spousal support. The factors and brief explanations are provided below:
(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.
How is “earning capacity” measured? Generally, a party’s education and work experience, along with the party’s age and health, is considered in determining his or her earning capacity. A 59-year old homemaker spouse with a high school education, severe arthritis, and no work experience outside the home will probably have a lower earning capacity. In contrast, a 39-year old spouse with an MBA and 10 years of work experience at a Fortune 500 Company likely has a higher earning capacity. If this factor is highly disputed, the parties may agree to or the court may order one or both spouses to undergo a vocational examination pursuant to Family Code section 4331.
(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.
The court must also consider if the supporting spouse has the ability to pay support. The court can consider not only the supporting spouse’s current earnings and investment income, but also the spouse’s earning capacity. A spouse cannot depress his or her income by working part-time if full-time work is available and he or she is not limited to part-time hours due to health reasons or caretaking obligations. Likewise, a spouse with an engineering degree and significant experience as a senior engineer cannot quit his job to work at a fast food restaurant in order to intentionally depress income available for support.
(d) The needs of each party based on the standard of living established during the marriage.
In determining the marital standard of living, the court generally assesses the last three years of marriage. The court considers the value of the marital home, as well as other assets enjoyed during the marriage such as vehicles and designer clothing/accessories. The court also considers lifestyle factors such as vacations and other leisure activities enjoyed during the marriage.
However, the court may also take into account whether the parties artificially inflated their standard of living based on over-extended credit. If that standard is not sustainable, it is unlikely that the court will order support based on it; instead, it is more likely to base the marital standard of living on the actual amount earned by the spouses during the marriage rather than the amount spent.
(e) The obligations and assets, including the separate property, of each party.
According to California Family Code section 770, all property acquired before or after separation, and all property acquired during marriage by gift or inheritance, are the recipient’s separate property. However, that separate property can still be considered in evaluating the recipient’s ability to pay support or need for support. For example, if Wife receives a $1 million inheritance after separating from Husband, the court may find that Wife has a reduced need for spousal support.
(f) The duration of the marriage.
For marriages of short duration (approximately less than 10 years), spousal support generally does not continue beyond one-half the length of the marriage.
For long-term marriages (approximately 10 years or longer), there is a common misperception that spousal support will continue permanently. However, the court does not order spousal support to continue indefinitely, even for long-term marriages. Instead, California Family Code section 4336 provides that the court retains the power to order and/or modify spousal support indefinitely, unless the parties agree otherwise or until one party dies or the spousal support recipient remarries.
(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.
If the parties have young children or children with special needs, the court takes this into account in determining what type of work and what hours of work a parent may be expected to work.
(h) The age and health of the parties.
The parties’ age and health can affect support in multiple ways. For example, a party’s poor health will likely reduce his or her ability to pay support and increase his or her need for support. Further, if a party is nearing the age of retirement (generally age 65), there is a reduced expectation that he or she will obtain training to enter the workforce. Additionally, if a party is nearing retirement age, his or her ability to pay support will be impacted as a party cannot be forced to work beyond retirement age to pay spousal support.
(i) Documented evidence, including a plea of nolo contendere, 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 emotional distress resulting from domestic 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.
As explained further below, a spouse with a history of committing domestic violence may be ineligible to receive spousal support.
(j) The immediate and specific tax consequences to each party.
To date (October 2018), spousal support is taxable to the recipient and deductible by the payor. The payor may deduct spousal support if the divorce or separation judgment is signed on or before December 31, 2018. However, spousal support payments made pursuant to judgments signed after December 31, 2018 may not be deducted. This change in law is in accord with the Tax Cuts and Jobs Act signed into law by Congress in 2017.
(k) The balance of the hardships to each party.
Hardships include the burden of paying support and the stress of not receiving support. If the payor spouse has ample income and assets, and, taking into account his monthly expenses, a support payment would not significantly impact his standard of living, it would be difficult to show hardship. Conversely, if the recipient spouse is largely dependent on spousal support for her basic needs, reduction or elimination of support would likely constitute a hardship.
(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.
Depending on other factors, such as the supported party’s age, health, work history, and childcare obligations, the court may determine that it is reasonable for the supported spouse to become self-supporting within a certain timeframe.
Family Code section 4330 provides that the court may advise the spousal support recipient to make reasonable efforts to assist in providing for his or her own needs. This advisement is sometimes called a “Gavron” warning.
(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.
According to Family Code section 4325, when one spouse has a criminal conviction for domestic violence within five years of the divorce petition’s filing, or anytime after, there is a rebuttable presumption affecting the burden of proof that temporary or permanent spousal support to the abusive spouse should not be made.
Family Code section 4325.5 states that when one spouse has a criminal conviction for a violent sexual felony against the other spouse within five years of the divorce petition being filed, the convicted spouse cannot receive spousal support. Moreover, pursuant to Section 4325.5, the court cannot order the injured spouse to pay the convicted spouse’s attorney fees out of the injured party’s separate property. Finally, the injured spouse is entitled to 100% of his or her retirement or pension benefits (including the community property portion).
(n) Any other factors the court determines are just and equitable.
This factor is open-ended and allows the court to consider other facts not delineated above. Some examples include bad-faith actions by one spouse such as attempting to hide income or assets. It is a “catch-all” provision that allows spouses to explain their particular facts and circumstances to the court.