How is Spousal Support Calculated?
Orange County Spousal Support Lawyers Explain Alimony
DISCLAIMER: The following information is not meant to be legal advice.
It offers alternatives, tips and resources for those with no means to
hire an attorney. For a more thorough explanation of how spousal support
is calculated, please review the applicable sections in the California
In understanding how
spousal support is calculated, it is important to first determine what kind of spousal
support the court is ordering. There are two forms of spousal support;
temporary spousal support and permanent spousal support. These two forms
of support are not calculated in the same way because each form of support
relies on different factors. A greater understanding of these factors
will result in a greater understanding of how the court calculates spousal support.
Temporary Spousal Support.
Temporary spousal support is support the court orders after Petition of
Dissolution (divorce) is filed, but before the dissolution of marriage becomes final. In other
words, it is a support order that is in place while the parties determine
their rights and obligations prior to a final divorce judgment being filed
with the court.
When calculating temporary spousal support, the court considers the needs
of the supported spouse and the supporting spouse’s ability to pay.
Typically, the court looks to maintain the standard of living that existed
during the marriage. However, when determining the martial standard of
living, the court looks to what the standard of living should have been
with respect to the income and property of the parties. By doing this,
the court avoids support orders based on a standard of living where the
parties lived beyond their means, or where the parties lived frugally
despite ample income and assets.
Permanent Spousal Support.
Permanent spousal support is the support a court orders when a divorce
is final. Unlike temporary spousal support, there are many more factors
that the court must consider in addition to “need” and “ability
Family Code §4320 lists 14 different factors that the court
must consider when calculating spousal support. Although the court must consider
each of the 14 factors, how much weight is actually placed upon an individual
factor is left to the broad discretion of the court. The factors that
the court must consider in determining permanent spousal support are:
1.) Ability of the Parties to Maintain the Marital Standard of Living
The court will examine the earning capacity of each of the parties. The
court will also take into account periods of unemployment that were incurred
during the marriage in order to concentrate on domestic duties.
2.) Supported Party’s Contribution to the Education of the Supporting Party
The court takes into account a spouse paying for the education or training
of the other spouse that ultimately results in that spouse becoming a
higher income earner. To illustrate this point, consider the following
scenario. Spouse #1 is working. Spouse #2 is attending graduate school.
Spouse #1 is paying Spouse #2 tuition. If Spouse #2 ultimately earns a
higher income than Spouse #1 due to the education that Spouse #1 financed,
then the court will consider that in calculating spousal support.
3.) Ability of the Supporting Party to Pay Spousal Support
The court considers the party’s
present ability to pay. The court cannot speculate as to future earning capacity. In calculating
the party’s present ability to pay, the court looks at the supporting
party’s earning capacity, earned and unearned income, assets, and
standard of living.
4.) The Needs of Each Party Based on the Marital Standard of Living
The court will take into account the marital standard of living during
the marriage in order to determine the needs of the supported spouse.
5.) The Obligations and Assets, including Separate Property, of the Parties
A sufficient separate property estate may preclude an award of spousal
support to that party. Moreover, negligent management of assets that would
have been sufficient for support may be grounds for denying or terminating support.
6.) The Duration of the Marriage
With the exception of long-term marriages, (i.e. marriages lasting 10 years
or more) spousal support is typically ordered for a length of time equal
to half the length of the marriage. The length of support for a long-term
marriage is left to the discretion of the court.
7.) Ability of Supported Party to be Gainfully Employed without Interfering
with the Interests of the Dependent Children in the Custody of the Party
If the custodial parent is unable to find employment because it would interfere
with the interests of the dependent children, spousal support may be ordered
to allow the custodial parent to remain unemployed.
8.) The Age and Health of the Parties
The age and health of the parties may warrant either an extension or elimination
of spousal support. In addition, the court may order support continued
where the supported spouse’s age or health make self-support impossible.
9.) Documented Evidence of a History of Domestic Violence against the Other
Party or either Party’s Child
A documented history of domestic violence against the other spouse or against
either spouse’s child or children may be grounds for the court to
reduce or eliminate entirely an award of spousal support that would otherwise
be ordered to benefit the abusive party.
10.) The Immediate and Specific Tax Consequences to each Party
How the tax benefits and obligations that result from the payment of spousal
support are distributed between the parties is factored into the court’s
11.) The Balance of the Hardships to each Party
The court must consider a weigh all of the 14 factors listed under this
section, and identify the obligations, issues, and challenges each face.
12.) The Goal that the Supported Spouse will be Self-Supporting within
a Reasonable Period of Time
The court will consider how long it will take for the supported spouse
to achieve a lifestyle near the standard of living that existed during
the marriage, based upon his or her own earning capacity.
13.) The Criminal Conviction of an Abusive Spouse
A criminal conviction for spousal abuse or child abuse will be considered
by the reduced or completely eliminated.
14.) Any other Factors the Court Determines are Just and Equitable
This is a “catch-all” provision, allowing the court to consider
whatever additional information it determines is relevant to calculate