California Spousal Support

Temporary support is generally calculated using a formula. When determining long-term spousal support, the court does not rely on a specific  “formula” to calculate support but rather looks at several other factors such as:

Standard of Living – This refers to the couple’s standard of living during their marriage. When determining support, the court will try to balance the right of each spouse to continue to enjoy a similar standard of lifestyle post-divorce as they enjoyed during the marriage.

Earning Capacity: Earning capacity deals not only with what a party is actually earning but also takes into consideration what they “could” be earning as opposed to what they may be actually earning.

Ability to Pay: This considers the parties’ standard of living and the income differential between the parties. Support may be based on how much money one spouse would need to be able to sustain the same lifestyle they enjoyed during the marriage and whether the other spouse can pay that amount.

Self-Sufficiency: Family Code Section 4320 requires the court to consider “that the supported party shall be self-supporting within a reasonable period of time.” This means that the goal of the court is to provide a time-frame of support to allow the support spouse to become self-supporting through job training, continued education, or other measures rather than simply remain reliant on support from their former spouse.

Age and  Health: These are two very important factors that the court will consider when ordering spousal support. For example, if a spouse’s age makes them less employable or inhibits them from being self-sufficient, the court will take that into consideration when making a support order.

Length of Marriage: Generally speaking, courts will require payment of spouse support for a period of one-half of the length of a shorter-term marriage (marriages ten years or less.) Marriages extending beyond 10 years are considered long-term marriages and courts are not inclined to issue a spousal support order with a specified cut-off term.

Education and Profession: Although California courts do not consider a professional degree property of the marriage, an associated business is considered community property. When ordering spousal support, the court will consider any contribution the supported spouse made to the other spouse’s procurement of a professional license or education.

Domestic Violence: In cases where there is a history of domestic violation against a spouse or their children, it can significantly impact a spousal support order. For example, if, during the last five years a spouse has a felony domestic violation conviction, they will be barred from receiving alimony or spouse support. Alternatively, if a spouse has a misdemeanor or domestic violence conviction, there is a rebuttal presumption against awarding spousal support. This does not mean that a convicted spouse won’t receive spousal support in misdemeanor convictions, but they will need to overcome the presumption and convince the court why they should receive support.

Associated Tax Consequences: Since spousal support is tax-deductible by the payor and taxable to the payee, the tax implications of spousal support are taken into account.

Financial Hardship: With the goal of trying to have each spouse continue to enjoy a similar standard of lifestyle post-divorce as they enjoyed during the marriage, this can be a difficult balancing act. The court will carefully weigh the balance of any hardship that may be experienced by each spouse.

Other Factors: Courts have other leeway in considering any other additional facts they may feel are relevant in making a spousal support order.

Temporary support: The court can order temporary support based on the short-term needs of one spouse and the other spouse’s ability to pay. A temporary support order may last until the couple’s divorce is finalized or until some specified time in the short-term future. Often, these orders are to assist one spouse in getting back on their feet until debt and property issues are settled.

Permanent or Long-Term Support: Long-term support is ordered to give the recipient spouse the opportunity to become self-sufficient in conjunction with a job or vocational training or continued education until they can maintain a similar standard of living as they enjoyed during the marriage. Long-term support is often associated with long-term marriages and may be open-ended, with the court retaining jurisdiction over the issue, or can have a specified termination date. Factors considered in long-term support include:

• Length (duration) of marriage
• Ability to pay
• Age and health of each party
• Earning capacity of each party
• The ability of the support spouse to become self-sufficient
• Debts and assets of each party
• Hardship support may cause the payor
• Tax consequences
• Any other factor the court may consider important

Family Support: A family support order is an order that combines child and spousal support into one payment. The court makes no distinction between the two payments. The court will not issue a separate child or spousal support order if they grant a family support order. One hundred percent of payments made under a California family support order are potentially deductible by the payee. In addition, payments made under this order are also reportable as taxable income by the recipient.

Spousal support is set out in California Family Code Sections 4320-4326 and 4330-4339. These sections outline how courts may order support and under what circumstances. Courts often use what is known as a “guideline formula” when calculating both child and spousal support. This formula is based on several factors, including the net income of both parties and the parties’ needs and ability to pay. The court will look at the individual parties’ monthly income and expenses, education and earning capacity, and standard of living.  Let’s look at two different calculations, the first using needs/ability and the second using a calculation formula.

Example using needs/ability to pay:

Needs: The net income of one spouse is $3200 a month but their expenses are $4000. They need $800 to make ends meet.

Ability to Pay: The other spouse’s income is $4800.00 per month but their expenses are $3800.00 per month. That spouse has the ability to pay support.

Decision: The judge might order the spouse with the ability to pay the additional $800 their spouse requires for temporary support.

Calculation of support using a common formula:

Monthly support = 40% higher earner’s net monthly income less (minus)  50% of the lower earner’s net monthly income.

Spouse 1 net Income = $6500 per month

Spouse 2 net income  = $4500 per month

40% of $6500 = $2600

50% of $4500 = $2250

$2600 – $2250 = $350.00

Spouse 1 will pay $350.00 per month spousal support to Spouse 2