Friday, April 25, 2014

How Much Spousal Support (Alimony) Will I Receive Or Be Required to Pay

Spousal Support In California

A primary job of divorce attorneys is to determine how to deal with spousal support.
In California, and other community property states, spousal support (sometimes called alimony) is founded on the idea that a married couple builds a lifestyle together from community funds.  When there is a divorce, the court may require higher earner (husband or wife) should assist the lower earner in maintaining their existing lifestyle for at least some period of time. California judges may award temporary support during divorce proceedings, as well as "permanent" support after a divorce is final. In both temporary and permanent support orders, one spousal is generally ordered to pay the other spouse a specific amount, generally monthly, for a specified time or until a later order. 

Sometimes, spousal support can be paid in a single lump-sum payment. And, spouses can agree between themselves on the terms and conditions of support payments. A court will uphold an agreement as long as it meets legal requirements, even if the agreement provides for a complete waiver of support to a lower-earning spouse.

How Long Does Spousal Support Continue?

The duration of spousal support in California is often tied to the length of the marriage. After a marriage of less than 10 years, a court will not usually order support for longer than half the length of the marriage. If a marriage has lasted 10 years or longer, the court generally won’t set a definite termination date for support at the time of the divorce; both spouses retain the right to request modification indefinitely, unless they specifically agree to a termination date, or the court expressly terminates support at a later hearing.

While courts and divorce attorneys often refer to post-divorce spousal support as "permanent," it is increasingly rare for a judge to order true permanent support, even after marriages of well over 10 years. California courts require a spouse seeking support to make efforts to become self-supporting, regardless of the length of a marriage. A spouse who claims an inability to work, or an inability to become fully employed, will have to support this claim with evidence, sometimes including a vocational evaluation. Long term support orders may reduce support gradually over time down to a nominal amount—such as $1.00 per year. True permanent spousal support is generally reserved for spouses who lack the ability to become self-supporting due to age or disability.

How Is The Amount Of Spousal Support Determined?

In California, the purpose of temporary spousal support is to preserve the financial status quo to the greatest extent possible. Generally speaking, it is obvious to even the casual observer that this goal is impossible because it costs more to maintain two households than maintaining one household. As a result, the courts look to “equalize” the “net spendable” amount available to each party. A court may order temporary spousal support in any amount after considering the needs of the spouse requesting it and the other spouse’s ability to pay. In practice, however, courts commonly use formulas for calculating temporary support.  The formula used by divorce attorneys in Orange County, California, is the the Santa Clara Formula, in which the court determines spousal support by subtracting 50% of the lower-earner’s net income from 40% of the higher earner’s, with adjustments for tax consequences and child support payments. Parents of dependent children can obtain a rough estimate of what temporary spousal support payments might look like along with child support payments—which follow very strict guidelines—by accessing the support calculator (click on the link) at the California Department of Child Support.

The purpose of support after a final divorce is to assist a supported spouse in maintaining a standard of living close to the marital standard.   Again, this is impossible because two households are more expensive to maintain than one.  

The goal, however, is for the supported spouse to become self-supporting to the greatest extent possible. Before ordering this kind of support, a court will consider the extent to which each spouse’s earning capacity is sufficient to maintain the marital standard of living, taking into account:
  • the marketable skills of the supported spouse,
  • the job market for those skills,
  • any time or expense the supported spouse requires to acquire education or training for employment or enhanced employability, and
  • the extent to which periods of unemployment due to domestic duties during the marriage have impaired the supported spouse's present or future earning capacity.
The court will also consider any other factors that may be relevant to the fairness of an award, including:
  • the extent to which the supported spouse contributed to the other spouse’s attainment of education, training, professional licensing or career advancement,
  • the ability of the supporting spouse to pay support, taking into account earning capacity, earned and unearned income, assets, and standard of living,
  • the needs of each party based on the marital standard of living,
  • each spouse’s obligations and assets, including separate property,
  • the duration of the marriage,
  • the ability of a spouse who is also a custodial parent to engage in gainful employment without unduly interfering with the interests of dependent children,
  • each spouse’s age and health,
  • any documented history of domestic violence by either spouse,
  • the immediate and specific tax consequences to each spouse,
  • the balance of the hardships to each spouse, and
  • the goal that the supported spouse will be self-supporting within a reasonable period of time—presumed to be one-half the length of a marriage unless the marriage was longer than 10 years.
California courts don’t ordinarily consider conduct in determining support, but a court won’t usually award support to a spouse who has acted extremely violently toward the other spouse.

Modification Or Termination Of Spousal Support

Unless the couple has a written agreement not to seek changes in spousal support in court, either spouse can request modification or termination of periodic payments due to a material change in circumstances. Absent a written agreement stating otherwise, spousal support terminates on the death of either spouse, or on the remarriage of the recipient. There is a rebuttable presumption that a party who is cohabiting with a new partner has a reduced need for support.

Tax Effects Of Spousal Support

Periodic spousal support payments are usually taxable to the recipient and tax-deductible by the payer. Couples who are able to craft their own settlement agreements can sometimes take advantage of this situation by structuring payments to create the best possible tax scenario for both spouses. If structured properly, there will generally be no tax consequences of a single lump-sum support payment.

By: Robert R. Beauchamp
Law Office of Robert R Beauchamp
23120 Alicia Pkwy
Second Floor
Mission Viejo, CA 92692
Tel:  949-370-8000
Fax: 855-370-8100


  1. This is a great article. Thanks for posting.

  2. This is a good article on California spousal support by a divorce attorney.

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