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When a couple legally separates or divorces in California, the court may order one spouse to pay for the support of the other. If the couple was previously married, this order is called spousal support or alimony; if they were domestic partners, it's called “partner support.” Support can only be ordered by either the date of filing the petition or more commonly, the date a Request for Order is filed, asking the court to order support.
When Can a Spouse ask the Court to Order Support?
Once a petition for Dissolution (Divorce) has been filed, the court has jurisdiction to order support paid by one spouse to the other. While the matter is pending, this is a Temporary Support order, is there is a calculation, based on a variety of factors and computed by a program called Dissomaster that establishes a guideline, or suggested amount, based on the respective incomes and debts of the parties, and considers tax implications as well as child support. There is no presumption that spousal support is appropriate, and it is not automatically ordered; it must be requested by the party seeking support through a Request for Orders motion.
How is the Amount of Spousal Support Determined?
Support orders can be calculated by a computer program such as Dissomaster or Xspouse. These programs establish a presumptive amount for temporary support. The court can also consider other factors to deviate from that presumptive and temporary number. Post-judgment or "permanent" support cannot be based on this computer equation. Long-term support must consider Family Code section 4320 criteria::
4320. 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) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, 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 4325.
(n) Any other factors the court determines are just and equitable.
As you can see, there are many factors that can affect a prospective spousal support order in California. The high-earning spouse usually fights to reduce the payments, and the supported-spouse will typically try to increase the amount and duration of payments.
How Long Does Spousal Support Last?
As you may have read in the paragraph above, there is a rebuttable presumption that support, if any, should last one-half the length of the marriage, for short-term (less than ten year) marriages. However, the 4320 factors above may justify an early termination, or extension, of the support.
Does the Supported Spouse have to try to find work?
Generally, yes, especially if the duration of the marriage is relatively short. The longer the marriage, and the older the parties, the less-likely the court will require a supported spouse to become self-supporting, but all spouses are required to make an effort to become self-sufficient. Just because a marriage lasts longer than ten years, it does not necessarily require indefinite support, and, conversely, a short marriage does not always result in minimal or no support.
Can a Spousal Support Order be Modified or Terminated Early?
A Marital Settlement Agreement (MSA) is a contract, approved by a judge. Frequently, a court will retain jurisdiction over a marriage, such that if the underlying facts that supported the initial order change in a substantial fashion, it is possible for either spouse to return to court to modify the terms. However, if a party negotiates in good faith, and agrees to waive any further modifications of support, then they have given up their right to seek subsequent modification based on changed circumstances. Waiving subsequent modifications should be considered with caution as circumstances can change, and its not always in the best interests of a party to “lock” in a particular term.
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