Defining Spousal Support (Formerly Known as Alimony)

Defining Spousal Support (Formerly Known as Alimony)

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Spousal Support and Alimony are interchangeable terms, with “alimony” being a more dated, less-used term.

 

Many people are unclear as to how Spousal Support is calculated or upon what factors it is based.

 

To begin with, there are two different times in a dissolution proceeding during which spousal support may be determined or calculated: In the initial phases, and in the later phases.

 

During the early phases of a dissolution proceeding, a lower-earning spouse may seek “temporary” support from the higher-earning spouse (regardless of gender). During this phase of the proceeding, the courts can, and typically do, use calculation programs like DissoMaster, XSpouse, SupportTax and CalSupport Pro. These types of programs are only allowed to be used in determining temporary support.

 

For purposes of calculating “permanent” support, the courts are tasked with individually assessing each case using the factors enumerated in Family Code, §4320.There are 14 different criteria the court must consider before making a spousal support order, including the earning capacity of each party, the good standing of either party, and any other factors the court determines are just and equitable. Refer to the California Family Code, §4320 for all 14 criteria.

 

There is a common misconception that spousal support is to last for one-half the length of the marriage. This is not codified anywhere. It is somewhat of an urban legend and is, at best, a guideline to be used in short-term marriages. For long-term marriages (those lasting ten years or longer), the court can order support to continue until death of either party, remarriage of the supported spouse or “further order of the court.”

 

There are other factors, or elements, that are more “family” oriented than spouse oriented, such as “the ability of the supported spouse to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.” This particular element is obviously more concerned with the interests of the children and the supported party’s obligation to seek “gainful employment” is conditioned upon the impact such employment will have on the children.

 

Subsection (i) is perhaps one of the most abused of all elements, but must be considered by the judge in determining support. The issue is the amount of weight the court puts on any of these factors. It seems that in a great number of dissolution cases I see lately, there is a request for Domestic Violence Restraining Orders filed either with or around the time the Summons and Petition for Dissolution are filed. Many attorneys are using this as a tactical ploy to gain an advantage in either the support aspects of their case or the custody aspects1.

 

Some of these factors or elements require the judicial officer to employ equitable principles in making a Spousal Support Order (Tax Consequences, Balance of the Hardships, “Any other factors the court determines are just and equitable,” become self supporting in a “reasonable period of time”). These are not usually as cut and dry as some of the other factors. The Court has broad discretion in a) awarding support, b) what the amount of support should be and c) the duration of the support order.

 

If you are in a situation where there is a great disparity in your income/earning capacity/assets and that of your soon-to-be former spouse, it behooves you to contact experts in that field. We at The Reape-Rickett Law Firm possess the required experience and skill to make sure your interests are protected and your assets are preserved.

 

1 I am NOT saying that there are no justifiable Restraining Orders sought or granted. There are. This is more a commentary on the number of “marginal” applications that I have seen in practice from other attorneys.