Spousal Support

Read our Financial Divorce Guide

Read our Financial Divorce Guide

Spousal Support (otherwise known as alimony) is intended to help the supported spouse to maintain his or her accustomed (marital) standard of living, and to help ease the transition to living as a single person. Either party may be ordered to pay spousal support. No statute requires that the husband must pay the wife. In fact, spousal support does not even have to go to the custodial parent in a case where minor children are involved.

The duration of spousal support is within the “sound discretion” of the court and commonly is related to the length of the marriage. In marriages of less than ten years, the statutes provide a presumption that support should be granted for half the length of the marriage. In contrast, in marriages of ten years or more, if so-called “permanent” support is established at the time of trial, it is an abuse of discretion for the court to set a future termination date. That notwithstanding, modernly, spousal support duration seems to be associated with a transition period from married life to single life, and while there may be exceptions, the courts generally tend to disfavor “lifetime support.” Also, unless the judgment or agreement provides otherwise, upon the death of either spouse, or the re-marriage of the supported spouse, spousal support is usually terminated.

Determination of Spousal Support is based on many factors, as provided by California Family Code § 4320, which states as follows:

“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 to pay of the supporting party, 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, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party where the court finds documented evidence of a history of domestic violence, as defined in Section 6211, against the supported party by the supporting party.

(i) The immediate and specific tax consequences to each party.

(j) The balance of the hardships to each party.

(k) 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.

(l) Any other factors the court determines are just and equitable.”

If the court’s jurisdiction to do so is reserved, given a “change of circumstances” and “good cause,” one can ask for a review and modification of the support payments at any time. For example, spousal support can be modified in instances where the income of one of the former spouses has changed substantially. Monthly payments can be increased or decreased accordingly.

In California, spousal support is a serious matter. Non-payment can result in the revocation of drivers, business, and professional licenses, fines, or even jail time. If you need information about the duration, amount and/or enforcement of spousal support obligations, consult an attorney at once.

“The facts and the equities in one case may call for no spousal support, or for very short-term support for the purpose of financially assisting one spouse in the transition to single status or until the proceeds from an ordered property division or sale can be received . . . At the other end of the spectrum are cases where the purpose of spousal support is to provide financial assistance to the supported spouse until the death of one of the spouses because . . . the supported spouse is not able to generate income from employment or assets, or, in any event, an amount of income sufficient to provide for his or her reasonable living expenses . . . In between are the myriad of factual circumstances which the trial court must consider in making its order for purposes which vary from case to case . . . [e.g., fixed-term support to enable supported spouse to obtain or complete an education, to stay home to care for young children, or to become self-supporting within a reasonable time] . . .

In other words, the purpose of spousal support cannot be defined by the Legislature; it is a determination to be made by the trial court in each case before it, based upon the facts and equities of that case, weighing each of the circumstances or guidelines specified by the Legislature in [Ca Fam § 4320], which are applicable to that case, as well as those specified by appropriate appellate case law . . . The issue of spousal support, including its purpose, is one which is truly personal to the parties.” Marriage of Smith (1990) 225 Cal.App.3d at 480-481, 274 Cal.Rptr. at 916-917; Marriage of Kerr (1999) 77 Cal.App.4th 87, 93, 91 Cal.Rptr.2d 374, 377.

Temporary Spousal Support

California courts are empowered to, and frequently called upon, to make orders for spousal support while the dissolution case is pending. Because temporary (pendente lite) spousal support serves a purpose entirely different from “permanent” spousal support awarded by the judgment, the Family Code § 4320 factors are not controlling on the issue of temporary spousal support pending trial. The propriety and amount of temporary spousal support lies solely within the trial court’s discretion, unrestricted by any specific statutory circumstances, based broadly upon need and ability to pay.

Indeed, whereas the Family Code preempts reliance on local court standardized schedules and computer software programs in fixing “permanent” spousal support orders, their use is ordinarily proper–and in fact encouraged–on the issue of temporary spousal support.

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