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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 Family Code.

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 to pay”. 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 support order.

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 spousal support.

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