In California, divorcing parties may have different earning capacities that would otherwise make the standards of living that they could achieve after divorce very disparate without the application of spousal support rules. Spousal support is not automatic. Knowing the rules surrounding spousal support can help spouses better prepare for the future and know what to anticipate.
Defining Spousal Support
Spousal support, or alimony, is a payment from one spouse to another that begins after the couple separates or divorces. Spousal support is paid due to an order by the family court or pursuant to an agreement between the parties.
Purpose of Spousal Support
Spousal support is paid in recognition of the contributions that a spouse made to the marriage, often due to sacrificing his or her own career ambitions to support a spouse’s or to raise children. Spousal support helps a lower-earning spouse to receive addition funds from the higher-earning spouse so that he or she can maintain a similar lifestyle after the marriage as was enjoyed during the marriage and so that the spouse does not become destitute due to not being able to depend on the income of the higher-earning spouse any longer.
Types of Spousal Support
There are different types of spousal support in California, namely:
- Temporary spousal support – This type of spousal support consists of a regular payment from the higher-earning spouse to the lower-earning spouse for a specified duration, typically during the course of divorce proceedings. Temporary support typically ends once a permanent spousal support award is in place.
- Permanent spousal support – Permanent spousal support provides regular support payments from the higher-earning spouse to the lower-earning spouse that is paid after the divorce. It is typically ordered to ensure that the lower-earning spouse can maintain a similar standard of living that he or she enjoyed during the marriage.
Requesting Spousal Support
Spousal support is not mandatory in every divorce. One of the spouses must specifically request it. Either spouse may request temporary, permanent or both types of spousal support. A court case may be in place before a spousal support award is made. The court case may be for legal separation, divorce, annulment or domestic violence. A spouse may ask for spousal support while the divorce case is pending as well as for support that continues after the divorce.
Spouses may agree to spousal support pursuant to a written agreement. This prevents the judge from making the decision about spousal support. The agreement must still be submitted to the judge for approval as part of the case. The spouses can agree on the amount of support, as well as the duration. They can also decide on how payments will be made, such as through an automatic deduction from the payor’s paychecks. The spousal support agreement is commonly included as part of the couple’s marital settlement agreement. Once the judge signs off on the agreement, it becomes an official court order.
Factors Considered by Courts in Awarding Alimony
California family courts consider a number of important factors when determining whether an award of alimony is appropriate. Absent an agreement by the parties, the court can make a ruling as to the amount and duration of spousal support. Some factors that the court takes into account include:
- The length of the marriage
- The age and health of the parties
- The debt and assets of the parties
- What each party can financially contribute to maintain the standard of living enjoyed during the marriage
- The needs of the parties to maintain the same standard of living
- The contributions or sacrifices that the recipient spouse made for the family
- Whether domestic violence was present in the marriage
- Whether the lower-earning spouse’s return to the workforce would interfere with child-rearing
- The tax impact of spousal support
Ultimately, the court is tasked with deciding whether each spouse can earn an income that is near what they earned during the marriage to maintain a similar standard of living. The judge looks at the earning capacity of the recipient spouse by considering factors such as:
- Marketable skills and job market for the skills
- Time and cost associated with the recipient spouse getting education or training to acquire skills or make skills more marketable
- The extent that unemployment or the ability to earn income by the recipient spouse was adversely affected due to helping support the other spouse’s career, care for children or perform domestic duties
Determining the Amount of Temporary Spousal Support
While the factors listed above help the court determine the appropriate amount of permanent spousal support, the process is different in determining the amount of temporary child support to order. Special formulas and software are used to determine the appropriate amount of temporary spousal support. These formulas consider the income of each spouse, health insurance deductions and other considerations related to the earnings of the spouses.
Duration of Permanent Spousal Support
The court determines how long permanent spousal support will be paid. Most permanent spousal support awards are not forever. A typical principle is that for marriages that lasted under ten years, spousal support lasts for half of the length of the marriage with the date of separation being the relevant ending point in tolling this time. For example, if a marriage lasted for six years from the date of marriage to separation, spousal support may be ordered for three years.
For longer marriages, there is not a self guideline to determine how long spousal support obligations will remain in place. The question is typically how long it will take for the lower-earning spouse to become self-sufficient. Spousal support remains in effect until a specified date as specified in the marital settlement agreement or judge’s order, such as upon the remarriage of the recipient spouse, a specific date or upon the death of either party. Additionally, a retirement age of 65 typically applies and a court generally cannot require a paying spouse to continue working after this age simply to pay spousal support.
Courts can make “Smith-Ostler” orders which means that they can order a spouse to pay the other spouse a percentage of bonuses or overtime income on a monthly basis. However, these orders are often difficult to calculate or enforce. If a spouse is not working and is voluntarily unemployed, an option may be to obtain a vocational assessment and have the court consider lowering or terminating spousal support if the recipient spouse makes no effort to obtain a job. Another option is to have the court impute an income to the spouse when determining a proper amount of spousal support.
Modification of Spousal Support
Spousal support determinations are made based on the information available to the court at the time. However, situations may change that make a change in spousal support reasonable and prudent. Either spouse – the recipient or the payor spouse – may request a change in a spousal support order so long as the marital settlement agreement or order is not non-modifiable. The spouses may agree to a change such as in the amount of support or the duration. This new agreement could then become a new court order. A modification may also arise by a petition requesting to change the spousal support order. This requires showing a material change in circumstances from the date of the original order, such as a job loss or a career enhancement for the recipient spouse. If a spouse has been involuntarily terminated or has experienced a reduction in income, the spouse may be able to receive a temporary abatement.
Treatment of Spousal Support
Alimony is tax-deductible for the paying spouse. Typically, if the spouses file separate returns, the paying spouse can deduct the full amount of spousal support payments that he or she made during the year. If a paying spouse files bankruptcy, the spousal support obligation is generally not dischargeable.