This overview regarding spousal support is NOT intended to be a substitute for a personal legal consultation with an attorney as it pertains to your situation. This is a general outline describing the methodical process of what the court considers when determining the amount and length of support based on the information provided.

WHO IS ENTITLED TO SPOUSAL SUPPORT?

(Under California Laws)

The parties have to be married to each other except for a few rare exceptions, one of them being a "putative spouse".

Spouse has a duty to support their partner when they are living together. They assume a mutual obligation of support upon marriage. Family Code 4301 states, "A person shall support the person’s spouse while they are living together."

Family Code 4302 states: "A person is not liable for support of the person’s spouse when the person is living separate from the spouse by agreement unless support is stipulated in the agreement." This certainly does not mean a person cannot receive support without an agreement, but are taking on the duty.

WHEN WILL THE COURT ISSUE ORDERS?

ORDER TO SHOW CAUSE:

During an OSC hearing, the court will issue what is called a Pendente Lite order which is normally set for a limited period of time, unless the parties agree upon the terms of support which is then called a "stipulated agreement". It is then adopted by the court and made a court order. This process is used to set initial support or to modify support.

STIPULATED JUDGMENT:

                  The parties agree to the terms of support either prior to the                   OSC  hearing (before the court hears the case), or before a trial.  The court then makes the agreement of the parties an order of the court.

MARITAL SETTLEMENT AGREEMENT:

An agreement between the parties which includes ALL aspects of the dissolution action including division of community property, assets and debts, child support and visitation (if there are children), and spousal support. The parties may enter into the agreement anytime after an action has been filed, in lieu of any hearing or trial, or even after temporary orders have been made. Once the parties have signed the agreement, it is processed with the court and made an order.

JUDGMENT:

If the parties cannot come to an agreement, the court may order a party to pay support to the other spouse for a specific amount and for a period of time that the court determines is reasonable based ON THE STANDARD ESTABLISHED DURING THE MARRIAGE taking into consideration the circumstances provided in Family Code 4320 and Family Code 4330 and the facts available (see below).

 

HOW DOES THE COURT DETERMINE SUPPORT?

To try to understand how much will the court set spousal support, an important factor considered is what the STANDARD of living was during the marriage and  prior to separation. How did the parties live? During the marriage, did both parties work? Did they live on credit which could be an indication they were living above their standard? Did they file bankruptcy? Were funds saved for retirement used to pay monthly obligations? Did they making substantial investments? Did they put money into saving accounts or just live from pay check to pay check? In Marriage of Smith (1990), the court indicated if the marital standard of living was unreasonably high, then the support was to be reduced accordingly. Some of the factors listed above, are a part of the overall determination made by the court. Many other factors can be used to help get an understanding what the standard of living was. The court has BROAD DISCRETION in determining the amount and length of support.

The court WILL NOT consider FAULT. California is a "NO-FAULT" state. Thus, the payment of spousal support technically will not involve fault or that one person caused the divorced therefore allowing payment for pain and suffering. Spousal support cannot be increased as an award or punishment to either party for fault. Support is not an issue of "right or wrong" or "good vs. bad", but based on all the circumstances of the parties utilizing the current Family Law Codes to determine to spousal support.

In the Marriage of Preitch & Calhoun and Marriage of Baker (case law), the court makes it clear that the court can NOT engage in speculation and must base it’s findings upon the evidence in the court’s record and inferences reasonably drawn therefrom at the time of the hearing. In other words, the court will NOT speculate, but will use certain facts in making it’s decision including all of the factors listed in Family Code 4320. The court will weigh each of them. Because each case is unique and each circumstance is different, when taking these factors into consideration, they cannot be given equal weight.

MARITAL STANDARD:

The point of reference is what was the marital standard. By using this, the court then makes a reasonable and logical ruling based on each of the factors in Family Code 4320. However, the Marital Standard of Living is not the sole factor nor does it set a limit, but it does bring a reference point to which each of the thirteen factors listed in the Family Code 4320 are used.

The marital standing of living is not the only bench mark the court will use. The court long ago established that needs include more than bare necessities of life, but that needs should include the parties stations in life during the marriage before separation. One important factor a party should understand, the courts and the State of California has NOT made any determination that support must meet the needs of the spouse as measured by the standard of living during the marriage. In fact, in most cases, spouses do not have sufficient funds. The cost of maintaining two households normally will not allow for payments at the standard of living during the marriage.

MARKETABLE SKILLS:

The standard of living also takes into consideration marketable job skills, the job market, and the time needed for education and training. If one of the spouses is not working, the court will take this into consideration when there is an unwillingness to put marketable skills to work. In other words, if a party can work (even part-time) and is not working, and has a certain level of skills, then the court will take that into consideration in the support award. If a person is not working, it is common for the court to order a vocational exam to determine the ability, skills and knowledge, and to find employment taking into consideration the person’s past employment history, current marketable skills, and the current employment opportunities available to that party. (Family Code 4331).

Another factor the court will use, is impaired earnings due to domestic duties. The court has long recognized that devoting time to raising minor children does have an affect on marketable skills and the realistic earning ability. One factor the court will use, is how long the person has been out of the job market. This is one reason the court normally orders a vocational exam to determine what the party’s ability is.

HIGHER WAGE EARNERS ABILITY TO PAY SUPPORT:

This is another factor the court will take into consideration. Just as the court utilizes all the factors in determining the ability and skills of the unemployed partner, it uses all factors in considering if the supporting spouse has the ability to pay.

When necessary, the court will use the actual earnings versus the ability to earn. Most of the time, the actual earnings is the capacity to earn, except when a spouse lowers his or her income intentionally. If a person is working and gets laid off, the court will normally use the current earnings level as long as it is not an attempt to avoid responsibility.

DEBTS/OBLIGATIONS:

The court will consider when the community debts are divided, a spouse who takes most of the obligations of the parties, how this affects the spouses ability to maintain the standard of living. It is not uncommon for the court to take this into consideration when determining the amount of spousal support.

The court can also make an order to the receiving spouse that he/she may have to pay taxes on the payments as income from spousal support. The court may also set spousal support at a specific dollar amount, then also order the paying spouse to pay the debts. It would be more beneficial to the spouse to work out an agreement where the support was reduced and he or she took over the debts to eliminate the tax payment.

LENGTH OF THE MARRIAGE

The length of the marriage plays an important role in determining the duration of spousal support unless otherwise stipulated to by the parties. For a marriage less than TEN years, the court can set a termination date. In a long term marriage, the court will keep jurisdiction over support even if no support is ordered, unless the parties agree otherwise. Depending on the totality of the circumstances, including all of the factors in Family Code 4320, many times a spouse will agree to set a termination date, agree to whether or not the support would be non-modifiable or not, and other specific terms as they relate to their case.

ADULT DEPENDENT CHILDREN:

The court can take into consideration special dependency needs of adult children and even grandchildren when looking at the overall factors involving support [Marriage of Siegel (1972)]. The court can order deferring the sale of family home if it finds that it is in the children’s best interest to maintain the household. As a spouse who pays for an adult child, the court may take this into consideration even though there is no longer a legal obligation to pay child support.

HEALTH AND AGES OF BOTH PARTIES:

After determining all the factors in Section 4320 of the Family Code, the court can extend or shorten the length of support unless it sets a termination date. If a long term marriage, an automatic termination date is not justified.

GOAL OF SELF-SUPPORTING:

The goal is to have the person receiving support become self-supporting . The court does not expect one to do so overnight but will expect so within a reasonable period of time. The Family Code does not define what the normal standard of living is for spousal support. This is determined by the trial judge based upon the specifics of each case. One way to look at it though, is the marital standard of living. If the party reaches what was the standard and can maintain it without the aid of a spouse’s support, the court may find that support is no longer needed. If a party’s standard of living was renting a two bedroom apartment and the paying spouse NOW has a new job and acquired a luxury house, if the former spouse can maintain the standard of living of the two bedroom apartment, the court could find that the receiving spouse has met standard of living. Both the time and duration of the standard of living will have an effect on the court’s determination.

Another factor considered is when there is no longer minor children to care for, even though it does not have a direct effect, it can be argued that it is no longer necessary to have such a high income to maintain what was needed before.

CAN SPOUSAL SUPPORT BE USED TO INCREASE THE STANDARD OF LIVING POST MARRIAGE?

The code section uses the words, "standard of living during the marriage". The case law, Marriage of Smith (1990), indicated that the court should, in weighing factors, consider both the terms of the amount of support and the duration of it.

Other case law indicates that the support order post-divorce is NOT to provide the other spouse with a better lifestyle than established during the marriage due to the increased ability to pay a higher amount. There are a few cases when the court has found it unjust not to do so, but in general, don’t expect an increase in lifestyle, post judgment.

If the evidence can prove a steady upward pattern of living of the parties prior to separation over a period of time, and that one spouse would be left at a substantial lower standard of living, the court could order support higher than the standard. This is not common in most courts without the facts that support it.

AMOUNT OF SPOUSAL SUPPORT:

This is the judge’s discretion to which he/she has considered all of the factors in the case and the Family Codes.

There is NO precise dollar amount that the court will order for the dollar amount earned. There is no written guidelines or formulas to determine spousal support. There are computer programs that gives the attorney and their client an idea what range it should be in. Most attorney’s use this to measure the weight of any offer of settlement, then adjusts it to their client’s best interests. Many courts also use computers to "compute" the figures and to determine the tax effect and other factors, but the court must still weigh the evidence as per Family Code 4320.

Given the above, support will be based on the marital standard of living and the general stations of life enjoyed during the marriage. It has been determined that if the support lowers the living standard (during marriage) significantly of the one paying support, then the support amount was an abuse of discretion.

OVER TIME PAY OF SPOUSE PAYING SUPPORT:

Overtime pay during the marriage or income earned from a second job is normally not counted when determining the reasonable marital standard of living during the marriage. When is it considered? Most of the time, the court will not consider the additional income for spousal support to keep the incentive for the person to continue to work. In Marriage of Simpson (1992), the court said earning capacity using overtime cannot be used for the purpose of determining spousal support. 

IS THE DIVISION OF COMMUNITY PROPERTY TAKEN INTO EFFECT WHEN SETTING SUPPORT?

This is one factor the court can take into consideration. The impact of the division must be weighed along with all of the other factors. If by awarding a house to the party which makes it easier to maintain the standard of living, this is certainly a part of the circumstances the court will consider.

MODIFICATION OF SUPPORT:

Unless the parties agree in writing, (contrary to Family Code 4360) , an order made under this section may be modified or terminated at the discretion of the court at any time before the death of the party required to make payment of support. Support that is non-modifiable: Support will continue even after the death of the paying party until the change of circumstances has been met.

If a motion is brought to terminate the end date of the support, the court will look at the length of the marriage when trying to reach a balance between payment of support and the duration of it.

The court can also change the amount of support at any time based on a change in the income of either party. Normally, an increase of income from the paying party will not increase support after the judgment as long as the standard of living is being met by the current level, but if the income decreases, the court could lower the amount of support.

Most of the time, the motion is brought by the paying spouse to lower support due to the change in income of the receiving party (includes income from a roommate, increase in wages, remarriage, and/or cohabitation). Co-habitation of the receiving party with the member of the opposite sex is one of the main reasons. In co-habitation with a person, there is a rebuttal presumption that there is a decreased need for support or that the support should be terminated.

If the party remarries and the support is modifiable, under the Family Code, unless there is a written agreement (normally a court order, not just a writing between the parties), spousal support will terminate.

CAN THE COURT TERMINATE SUPPORT?

The court can also modify or terminate support if it is determined that the party fails to make reasonable effort to become self-supporting. This should be a "good faith" effort. What was called a Gavron warning is not part of the Family Code. It is intended to make sure the receiving spouse makes a reasonable good faith effort to become self-sufficient.

It does not mean the receiving party has to do it, but the effort must be one of "good faith".

The court can modify support over time to a point where the support is either terminated or set to "zero" dollars. The court can make an order setting a termination date or in many cases, order a "step-down" in support. Step-down orders are based on as many factors as what determines support.

In most short-term marriages, the court will set a termination date which is normally around one-half the length of the marriage.

Can the parties stipulate to the terms and conditions of support?

The parties can enter into an agreement specifying the terms, however, any stipulation must be made with taking all of the factors into account. If the parties reach an agreement, the advantage of it saves both parties additional attorney fees and litigation costs. Many times the parties reach agreements which may compromise their initial desires, however, the overall agreement benefits the parties in the long term after understanding the legal effects which may have differed from their emotional requests.

Also the parties can agree to make support non-modifiable. This can be beneficial to both parties since it is a set amount known to both parties. The receiving spouse can earn as much as they desire, could even co-habitate and in many cases remarry without a reduction or termination of support. The paying party has the benefit of knowing the support is fixed and can plan a budget around it without the threat of having future litigation.

However, normally NON-modifiable support is part of an agreement of the parties. The receiving party may get property or other assets in lieu of part of the support or the other party accepts some or all of the community debts. The parties acknowledges that a fixed amount of support may be less but beneficial in the long term.

WHO DECIDES WHAT IS BENEFICIAL?

It comes down to the party who is contemplating litigation to achieve what they initially desire. Thus, the attorney’s client does make the decision. The attorney’s duty is to advise you based on the Family Codes, professional experience based upon similar cases, and the knowledge and skills of the practice of family law before the courts. The advise and opinion of your attorney should be given great weight, but it should not be interpreted as what you HAVE to do. ALL factors should be considered when making a decision to enter into an agreement, including additional costs of litigation.

You should NOT assume that the court, or the opposing party, will agree to your terms! Although each case is different, the court bases it’s decisions on Family Law Codes and a culmination of other factors of prior cases. After you do a careful review of all the factors mentioned above, then YOU must determine how you want your attorney to proceed.

What is the best way to proceed that is up to the client and their desires.

WHAT IS THE ATTORNEY’S ROLE?

Outside of litigation, the role of the attorney is to advise the client of his/ her options, and what the court may or may not do. The advice is based upon the information the client has presented, or discovered through the discovery process. It is not based upon emotions which tend to cloud the issues, however, the client’s overall well-being is important.

As your attorney, consideration is given to my client’s desires, my experience before the court, the specific court and judge, the laws of the State of California and the likelihood how the court would rule in the matter.

When a client informs me that he or she plans to get married after the divorce, then there are different issues to consider such as the amount and length of support, either non-modifiable or modifiable, and receiving certain assets, or a lump sum payment (if financially possible).

It comes down to negotiation between the parties. If the party desires specific assets, then the negotiation proceeds with the client’s consent. The parties understand that the issues are up for negotiation and that each item including support is something that is going to be negotiated.

In California, the issue of who was at fault, or who has been hurt by the other party, is not something that the court considers. Unfortunately, on the human-side of divorce, there IS hurt and pain that has been suffered by a party, but there is no monetary compensation. When a client retains an attorney, it is my opinion that a client is seeking advise for their best financial interests and needs and getting the results they can be comfortable with. Since there are so many issues the attorney and client has to deal with, no outcome in Family Law divorce cases are so-called "winning" cases. In Family Law, divorce cases usually encompass compromise and negotiation, not right or wrong, bad or good, just what is best for their client based upon all the factors being considered.

I could spend many pages detailing my role as an attorney in a divorce case. I base my professional experience on giving my client’s honest advice, even when they may not like hearing what they want or what the court will probably will do. However, when a good attorney advises their client of the probabilities, there are no surprises if the case proceeds to court and the client does not get what they initially wanted. Although I may not agree on the desires of the client, I will proceed in the direction the client wants as long as it is ethical and not in violation of my professional rules of conduct.

The information provided above is NOT intended to substitute for a one- on-one discussion of your case. It is NOT intended to encourage or discourage any request for support, but to give you a very brief overview of the conditions of the court for setting spousal support and it’s process.

For further information and consultation CALL, e-mail or fax your request for an appointment TODAY at the Law office of David A. Casey, Esq.

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copyright ©2005

To learn more about the following subjects,  click on the subject matter title you are interested in.

1. Divorce - Contested vs. Un-Contested.         2. Child Custody.       3. Child Support.    4. Spousal Support.     5. Restraining Orders.    6. Challenging Restraining Orders (TRO).     7. Attorney Fees (who will pay) 8. Contempt Actions - Enforcing a court order.    9. Paternity Action.    10. Child Support Enforcement . (DCSS and the District Attorney office)   11. Loss of Driver's License.   12.  Custody Evaluation .   12. Wage Assignment orders    13.  General common legal terms.   14. Legal terms used in a divorce proceeding.

Copyright 2005

by David A. Casey

Attorney at Law