Spousal and Domestic Partner Support
Spousal support is one of the most emotionally charged issues in a divorce. The attorneys at Ford Family Law have negotiated many complex spousal support settlements and have litigated dozens of spousal support matters.
Two Types of Spousal Support
There are two types of spousal and partner support: temporary spousal support and post-judgment spousal support (sometimes referred to as permanent spousal support).
Temporary spousal support is issued by the court in order to prevent the spouse in need from becoming dependent on others or the state. This support is designed to get financial assistance to the supported spouse during the time the divorce is pending. California courts typically use local guidelines for temporary spousal support. In most cases, the court limits the amount of court time attorneys and parties can spend arguing for or against these temporary support orders. These types of orders are like a snapshot – they are established by looking at several factors that exist at the time the request for support is made. Generally, the most important factors the court will consider are the gross incomes of each party.
Post-judgment (permanent) spousal support is very different from temporary spousal support. In fact, when issuing a post-judgment spousal support order, it is forbidden for the court to use temporary support guideline calculations. Furthermore, unlike child support, permanent spousal support is discretionary — meaning it is up to the judge to decide if permanent spousal support should be awarded. In order for the judge to make that decision she must review the evidence presented by the parties, including, but not limited to, the following:
The Length of the Marriage
If parties have been married for a significant period of time, then it is more likely a support order, if made, will be for an indefinite time period, unless otherwise agreed by the parties. This is especially true if, during a longer marriage, one spouse has been out of the workforce during the marriage.
The Age and Health of the Parties
A 29-year-old, healthy spouse who has been married for three years is much less likely to receive post-judgment spousal support (in both amount and duration) compared to the spousal support of a 50-year-old spouse who gave up a career to raise children during a marriage of 17 years.
The Earning Abilities of the Parties
Do both spouses have the ability to earn at levels commensurate with the marital standard of living? Usually, the answer to this question is “no.” What will it take for the supported support to become self-supporting? Is a vocational evaluation of the supported spouse required?
The Marital Standard of Living
In simple terms, what was this family’s lifestyle during the marriage? Did they always drive new cars, eat at expensive restaurants, save for retirement and take luxurious vacations or did they live very frugally, clipping coupons, drive old or used cars? It is not uncommon for parties to have different ideas as to what the actual standard of living was. An analysis of the parties’ tax returns, bank statements and credit card statements will shed light and provide objective information as to the marital standard of living.
The Parties’ Assets and Debts
In certain cases, even when the “higher earner” earns substantially more than the “lower earner” no spousal support orders will be made. This happens when the “lower earner” has received assets in the property division that generate enough income to cover the ongoing monthly needs of the lower earner.
Whether or not There has Been Domestic Violence in the Marriage
Where there has been a criminal conviction for an act of domestic violence perpetrated by one spouse against the other spouse entered by the court within five years prior to the filing of the dissolution proceeding, or at any time thereafter, there is a rebuttable presumption that any award of spousal support to the abusive spouse should not be made.
The Extent to Which the Support Party Contributed to the Education, Training and Career Position of the Supporting Party
A cohesive presentation of these and other factors is fundamental to obtaining the right spousal support result, as the order made will have a long-lasting impact on both parties.
Once the final or “permanent” order is made, the general rule is that the support amount may not be modified unless there is a change in circumstance that warrants modification of the support award. Typical changes in circumstances include (1) significant financial events, for example, the supported spouse obtains new employment or the payor spouse loses a job; and (2) significant life events such as a supported spouse cohabitating with a new partner.
Occasionally, to avoid future litigation disputes regarding the potential changes in circumstances, parties will agree to a “non-modifiable” support order which means just that, the support amounts are not modifiable, no matter the circumstances. In those cases, the supported spouse might be willing to accept support for a shorter period of time if that spouse knows the support paid will never be reduced. One additional option that allows parties to avoid the uncertainties of future support modification proceedings is referred to as a “spousal support buyout.” A buyout typically entails the payor spouse making a one-time, lump sum, tax free payment to the supported spouse. Like the non-modifiable spousal support structure, the buyout structure presents risks and benefits to both parties and a thoughtful, careful analysis of whether this is the right option for the parties is required.