Spousal Support (sometimes referred to as alimony) is money paid by one spouse to the other based on the payor’s ability to pay and the payee’s needs. Spousal support orders address the amount and duration of the payments.
Spousal support may be payable before the entry of the judgment (temporary support) and after the entry of the judgment (permanent support). The orders are generally modifiable based on a change of circumstances.
Judicial Analysis of Spousal Support Factors
Divorce courts are required to consider a wide array of factors in determining the amount of a spousal support award. The court must make findings on all Family Code section 4320 factors.
Courts have wide discretion in determining “how much” weight to allocate to each factor considered. Judges may give different weights to the various factors. Giving more weight to one factor may have a significant impact on the weight given to other factors. Bad conduct of a party during the marriage, the separation or during the trial may impact how a particular judge weighs various factors.
These same factors are considered by the family law courts when making an attorney's fee award.
The purpose of spousal support is to provide financial assistance to a spouse if that spouse has a financial need. Family law courts have wide discretion in determining the amount and duration of spousal support and are rarely reversed on appeal. The determination of 'ability to pay' and 'financial need' can be complex and nuanced. The amount of temporary support is more predictable and consistent than the amount of permanent or post-judgment spousal support.
Post-Judgment spousal support (also referred to as “permanent spousal support”) is not necessarily paid permanently. Post-judgment support may last for a very short period of time or until the death of either party. Divorce courts are prohibited from exclusively using a computer program or formula to set post-judgment spousal support. The court must consider, evaluate and balance many different factors in the process of determining the amount and duration of post-judgment spousal support.
Spousal Support Structure
Spousal support may be structured in a variety of ways to meet the needs and circumstances that exist at the time. Generally, the payments are in equal amounts paid monthly. Alternatively, they can be structured with two components: monthly payments, based on the payor’s base income, plus additional periodic support payments structured as a percentage of the income received by the payor over the base income. The latter component may be appropriate where the payor receives a salary plus other compensation paid on a basis other than in equal monthly payments. This latter component is referred to as an “Ostler-Smith” order.
The marital standard of living may be characterized by a family law court in general terms (upper middle class) or by using a specific dollar amount. The standard may be based on the net earnings of the community or on the expenses of the community. Generally, a three year average is used under either approach. It is generally thought that the expense approach utilizes recurring expenses – not all expenses. The marital standard of living is simply one of the factors to be considered by the court, it does not set a floor or a ceiling for spousal support – it is a benchmark. The marital standard of living is less significant as years pass after the date of separation.
In determining the payor’s “income” available for the payment of support, the court must determine what past period of time is representative of the payor’s earnings. The objective is to make a determination of the past period of time over which the earnings reflect an income level that is most likely sustainable. Here also, the court has wide discretion.
The duration of a spousal support order is determined primarily by the length of the marriage. However, other factors may also be considered, including but not limited to age and health. In a long-term marriage, spousal support generally lasts until the payee becomes self-supporting, cohabitation, the remarriage of the payee, the death of either party, a specific time period or some other relevant event.
In a marriage of less than ten years (a short term marriage), spousal support generally lasts for a term equal to one-half the term of the marriage.
It is the goal of the State of California for supported spouses to become self-supporting within a reasonable period of time.
Pre-1/1/19 spousal support payments are generally taxable to the payee and tax deductible to the payor, if they are paid pursuant to a written agreement or a court order. There are exceptions to this deductibility rule. Spousal support may not be tax deductible in very short term marriages even if they are pre-1/1/19 orders due to the IRS recapture rules.
Child support is not deductible to the payor and not included as income of the payee.
Unless stated in the judgment to the contrary, the amount of the spousal support order may be modified if a change of circumstances occurs. An example of a change of circumstances could be a reduction or increase in the income of either party (e.g. if the payor loses his/her job, spousal support may be modifiable, retroactive to the date of the filing of a request to reduce support (RFO) with the court).
An increase in the payor spouse's income by itself may not result in an increase in spousal support unless it is shown that the amount of the original support order was insufficient to maintain the marital standard of living.
If a spousal support order is modified by the court, it may not be modified retroactively to a date prior to the date the Request For Order (RFO) is filed with the court. The court has discretion as to whether to make an order retroactive and to which date. The fact that the payor party lost his/her job a year prior to the filing of an RFO or some other catastrophic event does not change this rule.