If there is a demonstrated need by one spouse and a demonstrated ability to pay relative to the other spouse, a divorce court will likely make an order for spousal support payable to the spouse in need. The determination of the amount, duration and other terms of the spousal support order can be very complex.
Temporary Spousal Support
Spousal support paid prior to the entry of the Judgment is characterized as temporary spousal support or pendent lite spousal support. Temporary spousal support may be ordered at a Request For Order (RFO) and is designed to maintain the status quo of the parties, where possible. The amount of temporary spousal support is often determined by the utilization of a computer formula accessed through the use of a computer software program (DissoMaster or X-Spouse).
Temporary spousal support may be ordered retroactively to the filing date of the Request for Order (RFO) seeking spousal support. Generally, the payor-spouse is credited with payments made to the payee-spouse or paid for that spouse’s benefit against any retroactive temporary spousal support order.
Permanent Spousal Support
At the divorce trial, permanent spousal support may be ordered. The term "permanent" is misleading because the spousal support may be ordered for a limited period of time. The term permanent is intended to distinguish this support from temporary spousal support. This spousal support is also referred to as post-judgment or long-term spousal support.
It is not necessary to present evidence in the divorce trial to show a change of circumstances in order for the divorce court to have the ability to order a higher award of permanent spousal support than it ordered for temporary spousal support (IRMO McNaughton).
Components of the Spousal Support Order
Permanent spousal support may have a number of components:
- Amount of the spousal support;
- Substantive stepdown (reduction in amount of spousal support at a later date);
- Jurisdictional stepdown (reduction of an existing spousal support order to an order with no payments but reserving to the payee the right to seek spousal support at a later date); and
- Reservation of jurisdiction (making no order for spousal support payments but reserving to the payee spouse the right to seek spousal support at a later date).
Temporary spousal support may be tax deductible to the payor-spouse and taxable to the payee-spouse if the payments are made pursuant to a written agreement or divorce court order, if the parties are not living in the same residence, if they do not file joint tax returns, and if the order is entered before December 31, 2018. Voluntary spousal support payments, paid without a written agreement or divorce court order are not tax deductible.
Permanent spousal support payments may be tax deductible if entered with the court before December 31, 2018. Modification of an order entered before December 31, 2018 may continue to be tax deductible to the paying party.
If spousal support is tax deductible to one party, it is taxable income to the other party.
The divorce court must consider any history of documented domestic violence in making a spousal support order (IRMO Priem).
A divorce court may order a spouse to participate in a vocational examination to evaluate his or her ability to earn.
Spousal Support Factors
The award of permanent spousal support is based on the factors set forth in Family Code Section 4320 as opposed to being based on the “status quo” as in temporary support matters. The divorce court cannot set permanent spousal support exclusively using the computer software formula used in setting temporary spousal support. Family Code Section 4320 sets forth specific factors that the divorce court must consider:
- 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:
- The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.
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.
F.C § 4320 Factors
- 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.
- 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.
- The needs of each party based on the standard of living established during the marriage.
- The obligations and assets, including the separate property, of each party.
- The duration of the marriage.
- 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.
- The age and health of the parties.
- Documented evidence, including a plea of nolo contendere, of any history of domestic violence, as defined in Section 6211, between the parties or perpetrated by either party against either party's child, 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.
- The immediate and specific tax consequences to each party.
- The balance of the hardships to each party.
- 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.
- 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 4324.5 or 4325.
- Any other factors the court determines are just and equitable.
Marital Standard of Living
The marital standard of living is important relative to the determination of spousal support. However, it is just one of the Family Code Section 4320 factors (IRMO Smith / IRMO Zywiciel). It is neither a ceiling nor a floor for the amount of spousal support. The marital standard of living may be looked at by the divorce court as a benchmark. The divorce court may define the marital standard of living specifically with a dollar level or generally in terms like “middle class standard of living” (IRMO Kerr).
The marital standard of living may be based on the party's actual recurring living expenses or it may be based on the net income of the parties. The theory that gives rise to using the net income approach, simply characterizes savings and investments as a life style choice. This approach does not distinguish between spending money on a vacation and spending money on stocks and bonds (IRMO Winter / IRMO Drapeau / IRMO Weinstein).
The marital standard of living is less important after a long period of separation (IRMO Rising).
The divorce court may require the payor spouse to liquidate capital assets to pay support and meet the martial standard of living if that was the practice during the marriage (IRMO Deguigne).
The divorce court must consider the marital standard of living of both parties, not just that of the payee spouse (IRMO Andreen).
The primary factor looked at by the divorce court, in determining the amount of spousal support is income. The definition of income is the subject of statutory law and many cases interpreting the statutes. Income available for spousal support may be defined by the divorce court more broadly than income available for child support.
Lump-sum severance compensation is to be spread out over the termof employment for which it is being paid and not allocated to the month in which it is received (IRMO Tong and Samson).
Unvested stock options or Restricted Stock Units may be characterized as income once vested (IRMO Kerr).
Free rent and meal allowances may be income. Deferred salary is income, as are recurring payments from family members (gifts) that are not, loans or early inheritance. Unallocated lump-sum personal injury recovery or annuity payments are generally not characterized as income. Student loans and unrealized gain in shares of stock are not income.
Representative Period of Earnings
The divorce court has discretion in determining what period of time to look to in establishing each party's earnings. However, the discretion must result in the selection of a period of time that is reasonable and reflects a representative period of time (IRMO Riddle).
Imputation of Income on Assets
The divorce court may impute income on assets of either party.
A court may impute earnings on the payee spouse's share of community property (IRMO Martin).
If the income generated by the payee's assets are sufficient to make the payee self-supporting, no spousal support should be awarded.
A divorce court may impute earnings on liquidated or sold assets (County of Kern v. Castle).
Imputation of Income to a Party
Appellate court divorce cases support the imputation of income to a party, if the facts warrant such action. The burden to prove that a party is deliberately depressing his or her income is on the divorce lawyer representing the party seeking to prove the underemployment (IRMO Regnery).
The divorce lawyer representing the party seeking to impute income must prove the earning capacity of the other party (IRMO Flaherty).
A divorce court may impute earnings to a party who has intentionally reduced his or her income but it must do so based on a normal work regimen for a person holding a similar job and may not impute income assuming excessive hours or overtime (IRMO Simpson).
Income may be imputed to a party who voluntarily leaves a job, at the level of prior compensation (IRMO McHugh).
The divorce court may not impute income to a party after the age of 65 (IRMO Reynolds).
Divorce courts have wide discretion in setting the length of time that spousal support is to be paid. Generally, spousal support cannot be terminated in a long-term marriage unless the spouse is self-supporting.
In a long-term marriage, a spousal support order generally provides that the payments will continue until the death of either party, the remarriage of the payee-spouse or future order of court.
It is the goal of the State of California, for supported spouses to become self-supporting within a reasonable period of time. In marriages of less than ten years, “reasonable” is generally defined as one-half the length of the marriage. A long-term marriage is a marriage of ten years or more in duration.
Generally, divorce courts will order spousal support to be paid for one-half the length of a marriage under ten years. In other words, the order will most likely be for two and one-half years after a five-year marriage. However, the divorce court has discretion to order support for a fewer or greater number years. In measuring the length of the marriage, a court cannot add any periods of cohabitation to the length of the marriage (IRMO Bukaty).
Spousal support cannot be ordered by a divorce court in one lump-sum. However, parties may voluntarily agree to a lump sum buy out of spousal support.
If the payor spouse receives commissions, stock options, bonuses or other fluctuating forms of income, the spousal support order may be structured by the divorce court with a base spousal support payment and a supplement spousal support payment, payable if and when the additional income is received. The supplemental spousal support payments are referred to by divorce courts as “Ostler-Smith” payments (IRMO Ostler and Smith).
A Judgment that provides for a future reduction in the amount of spousal support is a “substantive stepdown.” The divorce court may stepdown the amount of spousal support payable by the payor-spouse only if the evidence supports a finding of a reduced need of the payee-spouse on the date of the future spousal support stepdown.
A Judgment that reduces spousal support to zero at some point in the future is a jurisdictional stepdown order. Such a divorce court order must be supported by evidence that supports a finding that the payee-spouse will not have a need for spousal support on the date of the stepdown to zero.
The divorce court may order that spousal support shall terminate on a specific future date unless the supported spouse asks the court to extend support before the termination date (IRMO Richmond).
Modification – Temporary Orders
Divorce case law states that there need not be a change in circumstances to modify a temporary spousal support order. However, most divorce courts require a change in circumstances before modifying an order unless the action relates domestic violence. Spousal support can be modified retroactively only to the date of the filing of a Request For Order seeking to modify the support.
Modification – Permanent Orders
A permanent spousal support order may be modified by the divorce court upward or downward if there has been a change in circumstances.
There are many circumstances that may justify a modification of a permanent spousal support including the following:
- Decrease in income of the payor-spouse;
- Increase in income of the payee-spouse;
- End of child support;
- Discharge by payee-spouse of all community debts assigned to payee (IRMO Clements);
- Unrealized expectations that payee-spouse would be self-supporting (IRMO Beaust);
- Payee's support of adult children (IRMO Siegel [Yes]/ IRMO Serna [No]);
- Cohabitation and romantic relationship;
- Increase in child support (IRMO McCann);
- Payor-spouse's 65th birthday and retirement (IRMO Reynolds).
The following may not constitute a change of circumstances:
- Payee-spouse paying expenses of daughter and two grandchildren (IRMO Serna);
- Ability to access retirement funds without penalty (IRMO Dietz);
- Generally, mere passage of time;
- Increased income by payor-spouse without a showing by the payee-spouse that the original award failed to meet the marital standard of living;
- Payee-spouse's pursuit of an advanced degree as opposed to obtaining a job; and
- Payee-spouse's continued disability in a short-term marriage.
The income of a new spouse is generally not a source for spousal support.
In a modification context, the divorce court may look to the payee-spouse's entire course of conduct relative to seek and maintaining employment, to determine the payee's good faith in attempting to obtain reasonable employment and become self-supporting, not just the conduct since the last hearing (IRMO Schaffer).
Even without bad faith, failure to make reasonable efforts to seek employment, may justify a divorce court's decision not to extend spousal support (IRMO Sheridan). Irresponsible financial management may justify the termination of spousal support and jurisdiction (IRMO McElwee) by a divorce court.
Spousal support may be modified or terminated if the payee-spouse is cohabiting in a romantic relationship. There is a rebuttable presumption of reduced need when cohabitation exists. To rebut this presumption, the divorce lawyer representing the cohabiting spouse has the burden to prove that his or her client's needs have not been reduced. The parties need not hold themselves out as husband and wife for the presumption to apply. Expenses such as vacations being paid for with joint funds, expensive gifts and paying for joint bills and household living expenses are relevant. A former spouse giving away services as a homemaker, housekeeper, cook and companion are relevant issues.
All divorce court's orders are modifiable unless they were made non-modifiable by a stipulation of the parties. A divorce court cannot make a spousal support order non-modifiable without the consent of the parties.