The experienced attorneys at SLG can help you by ensuring that the complex issue of spousal support is properly handled in your divorce action.
Unlike child support, spousal support (also known as alimony or spousal maintenance elsewhere) is not a right and is within the discretion of the court. Spousal support can be temporary or permanent and is modifiable if there is a substantial change of circumstances.
Temporary Spousal Support
A party to a divorce usually applies for a temporary spousal support order shortly after the divorce action is filed. Temporary spousal support is a type of emergency measure to provide a spouse with enough money to live on while the divorce is making its way through the court. Temporary spousal support is usually calculated according to a formula.
Usually, temporary spousal support is calculated by a computer program that also calculates child support. Temporary spousal support, as well as permanent spousal support, is lower when the higher earner is also paying child support. When a spouse is paying child support, there is generally less money available for spousal support.
Permanent Spousal Support
Permanent spousal support cannot be determined according to a formula. In the past, trial courts that have applied temporary spousal support formulas to permanent support have been reversed by the court of appeal. In determining permanent spousal support, the court must consider and weigh the factors set forth in Family Code section 4320. The factors listed below are to be considered in light of the standard of living enjoyed during the marriage. The standard of living is determined by the parties’ income, expenses, or both. The factors include:
- Income and earning potential of each spouse
- Ability to work
- Needs of each party based on the standard of living during marriage
- Length of the marriage
- Whether one party lost earning potential due to time spent raising the children
- If a party contributed to the other party’s degree or professional license
- Ability to pay
- History of domestic violence
In California, each spouse has a duty to seek employment and become self-supporting to the best of his or her ability. Therefore, spousal support may not be truly permanent because the spouse paying support can always go back to court to ask for a modification. It is important to have the initial spousal support be fair and properly stated in a marital settlement agreement or by the court after trial.
Modification of Spousal Support
Spousal support modifications are among the most frequently litigated issues in family law. This is because spousal support is discretionary with the court, and the party paying spousal support usually wants to receive a reduction in spousal support. Spousal support modifications are considered by the court after the spouse seeking modification shows a change of circumstances. The change of circumstances may be one party’s wage increase, the end of child support after the youngest child reaches the age of majority, the recipient of spousal support cohabitating with another person, or the mere passage of time.
At trial for a support modification, the court is usually interested in the efforts the supported spouse has made to become self-supporting, how the income and circumstances of the parties have changed, and whether the supported spouse is going to be able to live without the continuation of spousal support. In some cases, there are multiple trials for modification of spousal support.