Estate Planning, Landlord/Tenant Disputes, Small Buiness

When a couple legally separates or divorces, the court may order one spouse or domestic partner to pay the other a certain amount of support money each month:  “spousal support” for married couples, “partner support” in domestic partnerships. The thought is, a higher earning spouse should help the lower earning partner to get on his/her financial feet during the period of transitioning from being a “community” and single life.

 

It must be said at the beginning, Spousal Support, unlike Child Support, is not a mandatory award. Judges will make the determination for whether or not spousal support is warranted, based on the financial circumstances of the relationship. If, for example, both partners are relatively equal with regard to their ability and opportunity for work, a judge may find that spousal support isn’t necessary. Spousal support, unlike child support, can be waived, as well.

 

When spousal support is appropriate, the length of the marriage usually determines how long an award might last. Generally, for marriages (including domestic partnerships) lasting less than 10 years, a court will maintain jurisdiction for the issue for half the length of the relationship. For partnerships lasting 10 years or more, the court can maintain jurisdiction indefinitely. Or, until the support payer proves to the court that support is no longer necessary.

Note that the above sentence refers to the court’s “jurisdiction” for the amount of time an award can continue. Circumstances change and one who is obligated to pay spousal support can bring an action to modify or terminate support based on changed circumstances as long as the court still has jurisdiction over a spousal support issue. Meaning, for example, for a relationship/marriage that lasted 9 years, an award doesn’t mean that the receiving spouse will receive payments for 4.5 years. It means that the court’s jurisdiction lasts over the matter lasts for 4.5 years and that circumstances may change the amount of an award.

 

A decision to award spousal support is highly discretionary…the courts have wide latitude in determining when an award is appropriate. There are two types of support that come into play when an order for spousal support is requested:

• Temporary Support – Generally an award from the time the request was filed to the date of the final judgement of dissolution and,

• Permanent Support – an amount to paid/received after dissolution of the marriage is final.

While it is true that an award for spousal support is highly discretionary, there are calculators for guideline amounts, for temporary awards, that when appropriate, a court may use for the award amount. Because that the software used, combined with the circumstances of the case, present so many unknowns, I do not attempt to offer an example here.

In a nutshell, the factors a court will consider when an award has been requested, along with the parties income and expenses, are found in California Family Code 4320. They are:

 

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.