HOW IS SPOUSAL SUPPORT CALCULATED IN CALIFORNIA?
Spouses in California have a duty to support one another. Specifically, California Family Code section 4300 states, “subject to this division, a person shall support the person’s spouse.” This obligation may continue post-separation in the form of spousal support (otherwise referred to as alimony).
With respect to spousal support in California, there is a distinction between temporary spousal support (pendent lite support which means “pending the litigation” in latin), which is ordered during the pendency of the divorce proceeding, and long-term or permanent spousal support, which can be ordered at the time of trial and/or as part of an agreement between the parties. Since the purpose of temporary spousal support (to maintain the status quo pending the divorce) and long-term support are different, the amounts and terms are calculated differently.
With respect to temporary spousal support, California Family Code section 3600, states:
During the pendency of any proceeding for dissolution of marriage or for legal separation of the parties or under Division 8 (commencing with Section 3000) (custody of children) or in any proceeding where there is at issue the support of a minor child or a child for whom support is authorized under Section 3901 or 3910, the court may order (a) either spouse to pay any amount that is necessary for the support of the other spouse, consistent with the requirements of subdivisions (i) and (m) of Section 4320 and Section 4325, or (b) either or both parents to pay any amount necessary for the support of the child, as the case may be.
Since family code section 3600 states that either spouse may be ordered to pay “any amount that is necessary for the support of the other spouse,” the court has broad discretion with respect to the amount of temporary spousal support awarded, but it is typical for the court to use “guideline support,” which is determined by a mathematical formula that is primarily based on gross income of the parties less statutory deductions (or in the case of self-employed individuals gross income less legitimate business expenses). In Orange and Los Angeles counties, the courts generally use the “Santa Clara” formula, which can provide for a spousal support award of up to 40% of the payor’s (or the person who is required to pay support) gross income based on the circumstances. An experienced family law attorney can discuss the factors the Courts utilize and can generally run a computer program to determine the approximate amount of temporary support that may be ordered.
Regarding permanent or long-term spousal support, California family code section 4330 states:
(a) In a judgment of dissolution of marriage or legal separation of the parties, the court may order a party to pay for the support of the other party an amount, for a period of time, that the court determines is just and reasonable, based on the standard of living established during the marriage, taking into consideration the circumstances as provided in Chapter 2 (commencing with Section 4320).
(b) When making an order for spousal support, the court may advise the recipient of support that he or she should make reasonable efforts to assist in providing for his or her support needs, taking into account the particular circumstances considered by the court pursuant to Section 4320, unless, in the case of a marriage of long duration as provided for in Section 4336, the court decides this warning is inadvisable.
In determining the amount and duration of permanent spousal support, the court shall be guided by the factors set forth in California Family Code section 4320, which states:
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 (or the one receiving/seeking spousal support); 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) 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 emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.
(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.
Although there are several factors that the Court must consider, four of the more significant factors are , (1) the duration of marriage, (2) the marital standard of living, (3) the ability of the supported spouse to become self-supporting commensurate with the marital standard of living, and (4) the assets and liabilities of the parties.
In California, a marriage of more than 10 years is considered presumptively a long-term marriage. In long-term marriages, the court cannot terminate jurisdiction (or its powers to make orders) over the issue of spousal support unless the parties agree. As such, spousal support can be ordered for an “open-ended” period of time when dealing with long-term marriages. For marriages of under 10 years, a court can, and as a general rule will, limit the duration of spousal support to one-half the length of the marriage (e. g. If the parties are married for five years, the duration of spousal support can be limited to 2 1/2 years), but it will depend on the circumstances of each case (as there are exceptions).
When it comes to the marital standard of living in determining spousal support, the court will make a finding of the parties lifestyle. Factors in determining the marital standard of living include, but are not limited to, the type of cars the parties own, the size of their house (and if they have multiple homes), the travel and vacationing habits of the parties, the amount of savings or spending the parties engaged in during the course of marriage, whether or not the parties regularly ate out or tended to cook meals at home, the parties’ income, whether or not both parties work, and any other factor that is descriptive of the parties lifestyle. In this regard, the court will attempt to determine what the marital standard of living (e. g. middle-class, upper-middle-class, etc.) was in order to ensure that the spousal support award enables both parties to maintain their situation in life as developed during the course of marriage, or is reasonably close to thereto depending on the circumstances.
Additionally, the court will put significant weight on the ability of the supported spouse to become self-supporting based on the marital standard of living. For example, if a spouse left a job or a career to raise the children, the court will allow that spouse time to reenter the workforce and gain the necessary skills and training necessary to become self-supporting. This factor varies greatly depending on the length of marriage, the education and experience level of the parties, the parties’ age, and whether or not there are minor children in the home. However, even in cases of long-term marriage, the goal is for the supported spouse to become self-supporting.
Finally, the court must consider the assets and obligations of the parties, including any separate property they may have. For example, if a party has a significant amount of assets, especially income-producing assets, and very little debts or liabilities, the amount of the spousal support award may reflect the ability of that spouse to support him or herself from those assets.
Needless to say, calculating spousal support involves many factors, and the court has broad discretion to use those factors in determined what the appropriate amount and duration of the spousal support award. Often times, the issue of spousal support is the most heavily contested issue, and an experienced family law attorney at Razai & Nefulda, APC can assist you in preparing your case to either maximize or minimize (depending on whether or not you are the supporting spouse or the supported spouse) the spousal support award in your case.
Please note that the use of the phrase “permanent” or “long term support” as used above refers only to the final spousal support award. Unless otherwise agreed to by the parties, final spousal support awards are not permanent and are subject to modification based on a significant change in circumstances.