Spousal Support Fundamentals

Andrea Kaye and Stan Prowse Legal Eagle Radio

Calculating Spousal Support

Spousal support tends to be a dirty word to the high earner spouse in a divorce. He or she is likely to come away thinking the amount ordered by the court is outrageously high, and that they got the shaft while the low earner got the mine. They are also likely to think that they have been singled out to suffer more than their similarly situated friends. For a variety of reasons, these perceptions are usually exaggerated.

In a companion article called Child Support Fundamentals we discuss the formula California mandates for child support, the computer program implementing the formula, and the inputs the program requires.

Happily enough for everyone’s convenience, with a different formula the computer also calculates who pays spousal support and how much it should be, with or without minor children. While the computer’s child support number is mandatory, its spousal support number is only a suggestion, and the judge can only use it for temporary spousal support during the case, not for the spousal support ordered in the final judgment. As one might expect, for temporary spousal support the judge adopts the computer number most of the time.

Family Code Subjective Child Support Factors

If there is a trial and the judge must determine spousal support for the final judgment, the primary consideration for the judge is the standard of living during the marriage, in light of fourteen subjective factors listed in the Family Code. Here they are:

1. The extent to which each party’s earning capacity will maintain the standard of living established during the marriage. Family Code Section 4320(a).
   

1. The extent to which the supported party contributed to the supporting party’s attainment of an education, training, a career position, or a license. Family Code Section 4320(b).
   
2. The supporting party’s ability to pay, taking into account his or her earning capacity, earned and unearned income, assets, and standard of living. Family Code Section 4320(c).
   
3. Each party’s needs, based on the standard of living established during the marriage. Family Code Section 4320(d).
   
4. Each party’s assets (including separate property) and obligations. Family Code Section 4320(e).
   
5. The duration of the marriage. Family Code Section 4320(f).
   
6. The supported party’s ability to be gainfully employed without interfering with the interests of dependent children in his or her custody. Family Code Section 4320(g).
   
7. Each party’s age and health. Family Code Section 4320(h).
   
8. Documented evidence of any history of domestic violence between the parties, including emotional distress resulting from the violence. Family Code Section 4320(i).
   
9. The immediate and specific tax consequences to each party. Family Code Section 4320(j).
   
10. The balance of hardships to each party. Family Code Section 4320(k).
    
11. The goal that the supported party be self-supporting within a reasonable period of time. Family Code Section 4320(l).
    
12. The criminal conviction of an abusive spouse when the court is reducing or eliminating a spousal support award under Family Code Section 4325. Family Code Section 4320(m).
    
13. Any other factors the court deems just and equitable. Family Code Section 4320(n).

As one prominent family law judge once jokingly remarked, nobody really knows what all fourteen mean. As a result the fourteen factors generally rate little more than lip service, and the final spousal support number generally looks much like the temporary spousal support number from the computer.

Duration of Child Support and the Termination Date

As far as duration is concerned, the Family Code provides only two clear rules. First, if the marriage lasted more than 10 years, jurisdiction to award or modify spousal support continues indefinitely unless both parties agree otherwise. Second, if the marriage lasted less than 10 years, spousal support for half the life of the marriage is reasonable.

In practice, and on the principle that we can’t predict the future, most court ordered spousal support (except for very short marriages) has no termination date. If either party wants modification, or the payor wants termination, he or she has to go back to court and ask for it. Proof of changed circumstances is usually required.

When cases are settled out of court, the parties can deal with the amount of spousal support and its duration any way they want. (1) Fixed termination dates based on half the life of the marriage are common, as are ‘step down’ orders - so much for so many years, a reduced amount for another so many years, and so forth until termination or (2) ‘Buying out’ spousal support by a lopsided division of community property in favor of the otherwise supported spouse is another alternative.

As you can see, in practice the computer generated spousal support number translates into a good deal of consistency. If you still don’t think it’s fair, remember that the perfect is the enemy of the good.

San Diego Divorce Attorney Stanley D. Prowse is a California Certified Family Law Specialist. We welcome your legal inquiries.