Spousal Support – The Basics

When a couple separates, the party earning less may find him or herself in need of spousal support. The issue of spousal support can be broadly divided into two categories: temporary spousal support and permanent spousal support.

In California, a court may order temporary spousal support during the pendency of a dissolution case. 1 Temporary spousal support is designed to preserve the status quo pending a final judgment. (Family Code section 3600 provides that any spousal support order be consistent with the considerations embodied in Family Code section 4320, subdivisions (i) 2 and (m), and section 4325 3 .) Family Code section 4320 sets forth factors that the court must consider in setting “permanent” or post-judgment support. A court might consider the duration of the marriage, the age and health of the parties, the balance of hardships to each party, as well as the following:

 The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage;
 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 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;
 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; and,
 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. Family Code section 4320 does not provide an exhaustive list, and explicitly grants the court authority to exercise its discretion, i.e., consider whatever it deems important to its decision. The three most common factors are the marital standard of living, need and ability to pay, and the assets the parties end up with upon divorcing.

The income of the parties will be key elements in the determination of temporary spousal support, which most California courts will base on the spousal support formula for Santa Clara County. From any amount not allocated to child support, 40% of the net income of the payor spouse, less 50% from the net income of the recipient spouse, is the temporary spousal support amount. That said, two cases have a bearing upon the court’s determination of post-judgment spousal support:

(1) Under In re Marriage of Weinstein (1991) 4 Cal.App.4th 555, a court may base spousal support on the parties’ average income during the recent past, rather than on their actual expenses, if the parties lived beyond their means. E.g., where the parties, prior to separation, typically lived off funds from savings, credit lines, refinancings, and the like.
(2) Under In re Marriage of Winter (1992) 7 Cal.App.4th 1926, if the parties enjoyed a frugal lifestyle, choosing to acquire investment securities rather than material luxuries, the court may include substantial funds for savings investments as part of its temporary support order. Additionally, while determination of a supporting spouse’s ability to pay is usually based on his or her actual income 4 , a court may impute income (or higher income) if the spouse seeking support can prove an ability to earn and an opportunity (usually meaning an employer willing to hire). 5 Bad faith avoidance of income need not be shown. 6 When the supporting spouse admits ability to pay any reasonable amount of support, detailed evidence of his or her lifestyle and net worth is irrelevant and unnecessary.

Finally, a “permanent” support order will likely not be “permanent” in practice, as all parties are expected to become self-supporting. Family Code section 4320, subdivision (l), requires the supported party to be self- supporting within a reasonable period of time, which it defines as generally one-half the length of the marriage. However, it does contain an exception for long-term marriages, which Family Code section 4336 defines as marriages of ten years or more (from the date of marriage to the date of separation).

1 Fam. Code § 3600.
2 Permits the court to consider documented evidence of domestic violence between the parties, including emotional distress resulting from domestic violence perpetrated against
the supported party by the supporting party, as well as consideration of any history of violence against the supporting party by the supported party.
3 Addressing criminal conviction for domestic violence.
4 The income of a supporting spouse’s subsequent spouse or non-marital partner is not to be considered when determining or modifying spousal support (except with respect to tax liability).
5 In re Marriage of Regnery, (1985) 214 Cal.App.3d 1367; In re Marriage of Bardzik, (2008) 165 Cal.App.4th 1291.
6 In re Marriage of Smith, (2001) 90 Cal.App.4th 74, 82.
Spousal Support