Spousal Support – Alimony

Practice Areas

Spousal Support – Alimony

Spousal support is the legal term for what is often referred to as alimony. It is an important factor to consider when a divorce papers are filed, as well as at the conclusion of a divorce case. These points in time correlate with what is called temporary spousal support (or pendente lite support) and spousal support after judgment.

How is temporary spousal support calculated? While a divorce action is pending, one common method is what is referred to as the County of Santa Clara formula, which generally states that temporary spousal support is computed by taking 40% of the net income of the payor, minus 50% of the net income of the payee.

To illustrate, assume wife makes $100,000/year after taxes. 40% of $100,000 = $40,000.

Assume husband makes $40,000/year after taxes. 50% of $40,000 = $20,000.

$40,000 – $20,000 = $20,000/year for temporary spousal support payable by wife to husband or approximately $1,667/month.

The above example is not precisely what a court would actually order on a temporary basis, as courts have broad discretion to take other factors into consideration, including tax ramifications, ability to pay, domestic violence, etc. So even at the temporary stage, the underlying facts of a particular case are important.

How is spousal support calculated at the conclusion of a divorce? The court is prohibited from using a formula to calculate spousal support at this stage. Rather, the court uses a series of factors enumerated in Fam. Code, § 4320. The statute in full reads 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 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) All 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:

(1) A plea of nolo contendere.

(2) Emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party.

(3) Any history of violence against the supporting party by the supported party.

(4) Issuance of a protective order after a hearing pursuant to Section 6340.

(5) A finding by a court during the pendency of a divorce, separation, or child custody proceeding, or other proceeding under Division 10 (commencing with Section 6200), that the spouse has committed domestic violence.

(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.

After a court takes into consideration the above factors, it will issue spousal support order. Although such an order is at the conclusion of a divorce, this does not mean that it cannot be modified at a later point in time. But this is an entirely different topic.

If you need assistance with establishing a temporary order or preparing for trial to establish a permanent spousal support order pursuant to a judgment, call the Law Office of André J. Ausseresses to assist you in obtaining the best possible result.

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