Spousal Support

Norris Family Law

A person going through a divorce wants to know: “Will I have to pay (or can I get) spousal support and, if so, how much will it be, and for how long?”

There are two kinds of spousal support (which is what “alimony” is called in California): temporary, and final. Temporary support is what is paid while the divorce case is pending. The courts typically use a computer program to calculate temporary support, with the amount determined by the parties’ respective incomes. Final support is a support order entered at the end of the case. For final support, a judge decides whether or not there should be support at all and, if so, in what amount, whether there will be a termination date, whether the amount will change at designated times in the future, and whether or not it will be modifiable (i.e., whether the door will be left open for a party to request a change later on). A judge has a great deal of discretion in deciding final support, but in making the decision, he or she is required to consider and balance factors that are set forth by statute.

Here are the circumstances that Family Code Section 4320 says the judge must consider:

(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 expense 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.


Child Support: The “Extraordinarily High Income Earner”

As you may know, child support in California is established according to a child support formula set forth in the Family Code, often referred to as “guideline support” since it is according to the statutory guidelines. The two major components in determining the amount of child support the payor will pay are (1) income of each party, and (2) their respective percentage of time with the child/ren. Judges rarely stray from ordering guideline support; it is presumed to be correct. You might wonder what happens if the payor suddenly begins earning much more income than he or she ever earned before. The basic rule is that children are entitled to share in each parent’s wealth, so child support would increase accordingly.

Occasionally we are asked whether there are any exceptions in the event that a payor’s income soars so high that the resulting guideline child support amount would be far beyond what the child needs. The Family Code does carve out an exception for extraordinarily high income earners, but what constitutes an extraordinarily high income earner is not clearly defined. If a party can show that guideline support would be “unjust or inappropriate” because the amount determined under the formula would exceed the needs of the children, courts do have the authority to order a child support amount that is below guideline support. The problem is that it is unclear how to measure a child’s “reasonable needs,” and how to then show that it is in the child’s best interests to receive less than guideline support. This exception is only infrequently applied.