Spousal Support for the Laymen
This blog is aimed at tackling one of Family Law’s most complicated and asked about areas of law, spousal support. As any Family Law attorney can attest to, when fielding a potential new client phone call or consultation, one of the first questions inevitably asked is about this very topic.
As you can imagine, everyone wants to know about their finances and what they may look like upon getting a divorce. It is perfectly understandable for anyone to inquire about their financial future when they are on the cusps of dividing everything by two, and possibly receiving or giving support to or from the other spouse. Naturally, you will want to know how much support you will receive or how much support you will have to give and for how long. We understand this process can be terrifying; your financial future is in flux! We get it. You want answers and we have them, well… sort of, we have the factors, which is as close as we can get and what will be discussed below, in part.
To best understand this process and lay the proper foundation, we are going to walk you through, from the beginning to the end. Our hope is that by the end of this blog, you will know exactly what to anticipate in moving forward through your divorce. And if you are already going through your divorce, you can gain additional information and a better understanding of spousal support.
To begin, a divorce is initiated by the following process: petitioner files, the respondent responds, and the parties exchange schedules of assets and debts, income and expense forms and declarations. After all of that is completed the parties can then, with all of this information, take on the property and financial aspects of the marriage, which includes spousal support.
The first thing you should know about spousal support is that there are two phases of it. The first is temporary and the second, you guessed it, is permanent. The courts, as you might not expect, deal with these two phases differently.
Temporary Spousal Support
Temporary spousal support is just that, it is temporary. It is primarily used to hold over the parties until the permanent order is set. Usually, the amount of support can be ascertained by the parties’ attorneys on a program called the Dissomaster, which is the same program used to determine child support.
What the attorneys do is they take the pertinent information from your schedule of assets and debts, tax returns and income and expense forms and input it to the Dissomaster program. The program asks for other information like the filing status of the parties, income, health insurance premiums, property tax and interest expenses, union dues and mandatory retirement. After inputting all of the pertinent information into the Dissomaster, it will run a calculation and determine how much the supporting spouse owes the supported spouse. Let it be known that the amount that the Dissomaster provides is presumptively correct; however, it can be negotiated by the parties, and/or rebutted to be incorrect and changed, with the Court.
Permanent Spousal Support
Permanent spousal support is dealt with much differently than temporary spousal support and rightfully so. The attorneys and Courts rely on California Family Code Section 4320 to get a permanent solution to your spousal support issues. Since this Code is so long, we took the liberty of breaking it down piece by piece for you into bite size answers you can reasonably swallow. The court will consider all of the following circumstances:
(A) At the outset of this Code, the legislature’s intent is for the Court to try and maintain the marital standard of living for both parties. If the parties earning capacity is sufficient, they will. However, the Court takes into consideration all of the following:
(1) The marketable skills of the supported party; the job market for those skills; the time 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. Essentially, the Court is to consider the skills and market for those skills of the supported party and how quickly they will be able to find employment. The Court will usually give the supported spouse a reasonable amount of time to attempt to get back on their feet and make a living from themselves. (I.E. (L))
(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. The Court will take into consideration a spouses earning capacity that was affected by performing domestic duties (for the family) instead of pursuing their money making career, and allow the supported party some time to get back in the job market.
(B) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license of the supporting party. For example, if one spouse was to financially help the other spouse pay for Law or Medical school and attain a position as a Lawyer or Doctor. Contributions can be made with money for tuition, supplies, as well as time and effort taking care of the family while the other party attends school.
(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. Here, the court takes into consideration all of the supporting spouses income and assets to determine what they can truly afford.
(D) The needs of each party based on the standard of living during the marriage. The Court views closely, based on the all-important marital standard of living what each party really needs.
(E) The obligations and assets, including the separate property of each party. The Court again, looks at all assets and debts of each party and assesses what each party can afford and owes.
(F) The duration of the marriage. The duration of the marriage is very important because it is either long term or short term. A short term marriage is considered less than 10 years and a long term marriage is 10 years or greater. If a marriage is a short term marriage you are generally presumed to get spousal support for half the time of your marriage. If the marriage is a long term marriage the supported spouse gets spousal support until death, remarriage of the supported spouse.
(H) The age and health of the parties. The Court will consider the age and health of the parties for a prospective outlook on what they will be able to afford given their immediate expected life span and expenses to be incurred as a result.
(I) The history of Domestic Violence between the parties on a child or one another. Obviously, the Court frowns upon this type of behavior and it can lessen or increase the amount of spousal support as a result of this type of behavior.
(J) The immediate and specific tax consequence of each party. Inevitably one party will be taxed and the other will be able to deduct support as an expense as a result of providing spousal support. Therefore, the consequences of the tax ramifications will be considered.
(K) The balance of the hardships to each party. The Court will consider the hardships each party has during marriage and will face after marriage in setting spousal support.
(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 (10 years), a “reasonable period of time” for purposes of this section generally shall be on-half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for greater or lesser length of time, based on any of the other factors listed in this section, and the circumstances of the parties.
(M) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of spousal support award. Please keep in mind that this section requires a criminal conviction. A spouse still may receive support in a civil domestic violence matter even if that spouse committed domestic violence because it is not a criminal conviction.
(N) Any other factors the court determines are just and equitable. The Court is allowed to factor in anything else that it deems is fair and just, the legislature was sure to give the Court ultimate discretion.
Last, it is important to understand that even permanent spousal support dictated by California Family Code Section 4320 is not permanent. If after your judgment, circumstances have significantly changed, then you may be able to modify your spousal support to a greater or lesser number. However, be reminded that the Court again will take into consideration the same factors listed above.
If you have any questions regarding this Sullivan, Krieger, Truong, Spagnola & Klausner blog do not hesitate to call and inquire further, we would be glad to assist you. You can reach our offices at 1-877-877-1-LAW or at www.sullivankrieger.com