Spousal support is available in a divorce process in cases where there is a disparity in income.
The court determines spousal support orders by considering 14 factors. These 14 factors are listed in Section 4320 of the California Family Code.
Section 4320 – Factors to be Considered in Ordering Support:
1. “The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage”
During the marriage, your standard of living will be determined by the court. This will be shown by what kind of income you and your spouse have grown accustomed to via evidence such as your assets and tax returns.
The court will ask whether each party will be able to find a way to continue to live at this level. Often, when two incomes drop to one, this may be tough. It is more difficult if one person has stayed home to take care of children or pursue other efforts while the other spouse has begun to earn a significant income.
The court would prefer not to leave one spouse out in the cold and would order spousal support to avoid this taking place in these circumstances.
2. “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.”
It is remarkable how many times a spouse will work to support the other spouse through educational efforts to improve their financial earning capacity and as soon as that earning capacity comes to fruition, a divorce gets filed. If a spouse has supported another spouse which will enable them to earn more money, that would lean towards a larger award of spousal support.
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3. “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 person who is going to be paying—how much can he or she pay based on income or assets? The more that person has to pay, the more likely the court will enter an order of spousal support.
4. “The needs of each party based on the standard of living established during the marriage.”
This is connected to the first factor wherein the court wants to know what was the standard of living during marriage. Need is not merely food, clothing and shelter. If possible, the court is inclined to order spousal support so that both parties, as much as possible can remain at the standard of living achieved during marriage.
5. “The obligations and assets, including the separate property, of each party.”
What other debts or responsibilities exist between the parties that can help determine the complete financial picture and assist the court in deciding what would be a fair award of spousal support.
6. “The duration of the marriage.”
A marriage of long duration, which is longer than 10 years, will usually result in a permanent award of spousal support. The longer a marriage usually coincides with one spouse being out of the job market for a longer period of time. These factors tend to lean toward a higher award of spousal support for a longer duration.
7. “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.”
How would the employability of the custodial parent impact the children? The needs of the children could justify indefinite spousal support in order to protect the welfare of the children.
8. “The age and health of the parties.”
Age and health considerations are used in determining the duration of support and may warrant an extension of support in certain circumstances.
9. “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.”
This factor codifies the principle that victims of domestic violence should not be required to support their abuser financially. If domestic violence is a factor in your families life, it will affect how the court will decide an issue like spousal support.
10. “The immediate and specific tax consequences to each party.”
Contact your CPA for tax advice, but it is a factor the court will entertain on the issue of spousal support.
11. “The balance of the hardships to each party.”
A divorce can often create financial hardship. One spouse often will desperately need spousal support and the other spouse will have difficulty making the support payment. It is not easy. The court will look to the balance of the hardships in making their support orders.
12. “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.”
For a marriage under ten years, spousal support will generally be ordered for approximately half the duration of the marriage. So spousal support for an 8 year marriage will usually go for 4 years. This is a general rule and will not impede the analysis of the other factors.
13. “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.”
This one is pretty obvious.
14. “Any other factors the court determines are just and equitable.”
This factor allows the courts to use any unforeseen or unaccounted for factor in determining what to order with regard to spousal support.
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