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Unlike child support, spousal support is not mandatory. The award, amount, and duration of spousal support can depend heavily upon the advocacy of your divorce attorney. To help clients secure a fair spousal support award divorce attorney Jin Kim offers affordable representation payable by credit card.
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Spousal Support Orders in California
What is more commonly known as alimony is known in the state of California as spousal support.
In rough terms, spousal support is the monetary payments made by one spouse to another in the event of a legal separation or divorce. This is financial assistance that broadly covers a variety of living expenses such as housing, food, clothing, travel, and recreation, as well as payments for the traditional household expenses such as mortgage and insurance payments.
Who Is Entitled to Spousal Support?
The underlying reason for spousal support is in consideration of the sacrifices made by one spouse during the marriage, such as giving up their career in order to raise the children and to allow them time to get back on their feet financially, while maintaining them in the lifestyle that they had prior to the divorce.
Types of Spousal Support
There are two types of spousal support recognized in California: temporary and permanent.
Temporary spousal support is usually ordered by the court to be paid pendente lite, or pending litigation, in order to maintain the status quo lifestyle and living conditions of one spouse during the pendency of the divorce proceedings until the division of the marital assets, properties, and liabilities.
Courts usually consider the ability of one spouse to pay and the needs of the other party in ordering temporary support. In addition, while the aim of temporary support is to maintain the party in their accustomed marital lifestyle pending litigation, courts do, however, recognize the reality that supporting oneself as well as the other party in their premarital lifestyle is beyond the ability of many. It is practically tantamount to supporting two households.
Courts have been flexible in this regard, and generally determine that they can only equitably allocate the family income to maintain the parties in as close to the pre-separation condition as possible.
An order for Temporary Spousal Support can begin from the time of the filing of the petition for the dissolution of the marriage, and remains in effect until either:
- A judgment is issued;
- The case is dismissed; or
- The order expires on its own terms
Even though this is only a temporary support order, it has the full force and effect of a final order and is enforceable against one of the parties to pay. Therefore, unless the order for temporary support is terminated, then the obligation to pay it remains, and the payment obligation continues to accrue even if the case for dissolution of marriage is not being actively pursued in court. In fact, these payment obligations are enforceable even after the termination of the support order.
For that matter, even if the order for temporary spousal support is terminated due to the issuance of a judgment in the dissolution case, the court retains the power to order temporary support pending any appeals made.
The only exception here is that the order is not enforceable for any period of time when the parties have reconciled and are once again living together.
This type of support is the award given in the judgment on the petition for marital dissolution or legal separation.
Despite its name, this type of support is not per se “permanent.” Most orders for permanent support given in a judgment of dissolution or separation are limited by the courts in terms of a just and reasonable amount and for a specific period of time. Any kind of support awarded in a final judgment is still subject to subsequent modifications.
Temporary support is intended to preserve the status quo of the parties pending the duration of the litigation. Once the court proceedings are terminated, and permanent support is granted, the court’s intent in awarding any type of spousal support is to provide the supported party with financial assistance for the time that is necessary to allow the lower-income spouse to become self-sufficient.
Calculating Permanent Spousal Support
Unlike child support, permanent spousal support is not calculated using a formula. Instead, the determination of whether to award support, the amount of support, and the duration of support are based upon the consideration and weighing of 14 factors found in Family Code §4320.
- Earning Capacity – the court must consider each party’s earning capacity and whether that earning capacity is sufficient to maintain the standard of living during the marriage. In doing so the court will consider the supported spouse’s education, job skills, and the market for those skills. The court will also consider the supported spouse’s possible need for education to enhance the marketability of those skills to produce income. Likewise, the court will consider the effect of prolonged unemployment during the marriage on the supported spouse’s future earning capacity.
- Contribution to Education, Career, or License – the court will consider any contributions made by the supported spouse to the supporting spouse’s education, training, career, position, or license. What constitutes a contribution is interpreted broadly and can include contributions in the form of reduced living expenses.
- Ability to Pay – the court will consider the supporting spouse’s ability to pay spousal support. In doing so the court will evaluate the supporting spouse’s actual income, earning capacity, assets, and standard of living.
- Parties’ Needs – the court will consider each parties’ needs in light of the standard of living during the marriage. There is no precise calculation to gauge the marital standard of living. In making this determination the court can look to income and expenses over time, but in any event, the determination is intended to be an approximation of the general station in life enjoyed by the spouses during the marriage.
- Assets – the court will consider each party’s assets, including their separate property. If the supported spouse has significant separate property this factor weighs against the award of support. In contrast, if the supporting spouse has significant separate property that may evidence an ability to pay spousal support.
- Length of Marriage – The court will look to the length of marriage in determining the duration of spousal support. Generally, the longer the duration of the marriage, the longer the duration of spousal support. Marriages of very long duration which leave the supported spouse in advanced age with unmarketable skills may result in an order of indeterminate duration such that support will end upon the death of either spouse.