Spousal Support

No longer referred to as “alimony” in California (although the Internal Revenue Service uses the term “alimony”), spousal support is intended to provide a divorced spouse with income in order to eventually become independent and self-supporting.

A court has more discretion in determining spousal support than it has in connection with child support. Family Code §4330 merely provides that a court may award spousal support to a party. If the court decides to award spousal support, the court must consider the following circumstances (Family Code § 4320):

(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.
  3. 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.
  4. The ability to pay of the supporting party, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.
  5. The needs of each party based on the standard of living established during the marriage.
  6. The obligations and assets, including the separate property, of each party.
  7. The duration of the marriage.
  8. 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.
  9. The age and health of the parties.
  10. The immediate and specific tax consequences to each party.
  11. The balance of the hardships to each party.
  12. The goal that the supported party shall be self-supporting within a reasonable period of time. 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 and the circumstances of the parties.
  13. Any other factors the court determines are just and equitable. (Family Code §4320)

In determining support, a court may consider the earning potential of a party. Therefore, a payor party cannot reduce or escape responsibility for spousal support by refusing to work or transferring employment to a lower paying position (Philbin v. Philbin (1971) 19 Cal.App.3d, 115, 121). Similarly, a payee party can also be imputed with an earning capacity if they refuse to work, or fail to exercise reasonable efforts to become self-supporting.

A spousal support award issued pursuant to an initial Request for Order in a marital dissolution proceeding (temporary support) may be greater than a “permanent” award made at the time of trial. When making temporary spousal support orders, courts commonly defer to the formulas to calculate the amount of support. In Los Angeles County, the courts have adopted the Santa Clara guideline formula for this purpose. However, when making a permanent spousal support order, judges are not allowed to use any guideline formula. Rather, the court must base its decision on the amount and duration of support on the factors listed in Family Code §4320 (see above), and on the standard of living enjoyed by the parties during marriage.

If the supported person fails to make a good faith effort to eventually become self-supporting, the court may consider such failure in deciding to reduce or even terminate support. Family Code §4330 in part, provides that a court, in issuing an order for spousal support, must issue its express warning that “it is the goal of this State that each party shall make reasonably good faith efforts to become self-supporting as provided in Family Code §4320. The failure to make reasonably good faith efforts may be one of the factors considered by the court as a basis for modifying or terminating support.” (Family Code §4330(b)).

Although by no means a strict rule, the “rule of thumb” for the duration of support is one-half the length of the marriage. Counsel for a supported spouse should argue against any termination date if possible (In re Marriage of Vomacka (1984) 36 Cal.3d 459, 204 Cal.Rptr. 568, 683 P.2d 248). Support orders in short-term marriages, however, typically will have a termination date. Nevertheless, for lengthy marriages (marriages longer than ten (10) years), except in rare situations, it is abuse of the court’s discretion to set a termination date for spousal support (In re Marriage of Morrison (1978) 20 Cal.3d 437, 143 Cal.Rptr 139, 573 P.2d 41, Family Code §4336). In some cases, a court may believe the supported person may be self-supporting by a particular date, but may wish to reserve jurisdiction to extend the termination date prior to the time set for termination. This can be accomplished by use of a Richmond Order (In re Marriage of Richmond (1980, 1st Dist) 105 Cal.App.3d 352, 164 Cal.Rptr. 381) making just such a provision.