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Divorce & Family Law Blog by Attorney Jamie Elmer of Berkeley, California

Spousal Support in California: Almost everything you need to Know

Alimony, separate maintenance, spousal support? Alimony, spousal support, and separate maintenance, are all different labels that mean the same thing. The terms refer to money paid by one spouse for the support of the other, paid under a court order.  California uses the term "spousal support."

Permanent Spousal Support and Temporary Spousal Support. 

There are two kinds of spousal support, "permanent support" and "temporary support". Permanent spousal support is the support ordered in the final judgment whether the judgment is a result of a trial or settlement. It is not "permanent" in the sense that it goes on forever. Temporary support on the other hand is a support order made any time prior to trial or settlement, and is usually made at the beginning of the case after a motion by one of the parties.

Calculating Temporary Spousal support.

Temporary Spousal support is subject to a computer guideline, but unlike child support, courts are sometimes willing to use their discretion in setting temporary spousal support below or more rarely, above guideline support. Although each county has its own rules, usually, where there is no child support, the amount is 40% of the net income of the payor spouse less 50% of the supported spouse's net income.

Where there is also child support, most counties will simply add or subtract the child support in determining the net incomes of the parties before spousal support is calculated, while other counties use a more complicated calculation to factor in the child support received or paid.

Considerations and timing a request for support

Where the party seeking spousal support waits a significant amount of time after the date of separation and somehow manages to support themselves during that period, there is the implication as a practical matter, though not a legal principle, that they don't need support. Thus, one seeking support should not delay in making a request of the court for temporary spousal support.

Calculating "Permanent" spousal support.

Determining permanent support involves a more subjective calculation. The amount is generally based on the marital standard of living as affected by some 14 statutory factors, including the ability of the supporting spouse to pay support, and the needs of the supported spouse. Thus, to the extent it can be reasonably accomplished, the court tries to allow each party to live consistent with the marital standard of living. However for most married people, there is no way they can live at the same standard of living given that there will be two separate households to support instead of one. As a general rule, permanent support typically ends up being less than temporary support, though that is not always the case.

Tax consequences for spousal support.

Spousal support paid pursuant to a written agreement, or a court order, is taxable income to the recipient, and deductible to the payor. Informal support payments without a written agreement or court order are not deductible, nor are they income to the recipient for income tax purposes.

Duration of spousal support. 

The court expects the supported party to be self-supporting within a reasonable period of time. Except in the case of a long term marriage, a "reasonable period of time" is considered to be one-half the length of the marriage.  In negotiated settlements, therefore, the term of spousal support is usually half the length of the marriage, whether long term or not. [calculated from date of marriage to date of separation.]

In a marriage of over 10 years, the courts typically do not set an end date for support, but provide that it is to continue until further order of court. In that case, the payor spouse can return to court when they think the supported spouse has become, or should have become, self-supporting and ask the court to terminate or lower spousal support.

The courts do have the power to order step downs to support after a stated period of time, and can even put the burden on the supported spouse to come in at some date in the future and argue why support should be continued further.

Changing a spousal support order.

Spousal Support can be modified at any time, either before trial, or after judgment, upon a showing of changed circumstances, unless the parties have agreed in the settlement that it will not be modifiable. "Changed circumstances" refers to an increase or decrease in either party's income, or to a lesser degree one's expenses.

Agreements regarding Spousal Support.

The parties are free to make whatever agreement regarding spousal support they want. Whether there will be spousal support, its length, and the amount of support are often subject to negotiation, and agreement.

Thus, the parties can agree that there will be no spousal support, and can even provide that the court will lose jurisdiction to order spousal support in the future no matter what that then circumstances of the parties are. In that event the court can never order spousal support, even if it would be extremely unfair to not order support.

Can the court consider new spouse or partner income in calculating support?

No. After the parties are divorced and the spouse paying support remarries, his or her new spouse's income [or assets] cannot be considered in determining spousal support. Thus, the new partner or spouse's income cannot be added to the supporting spouse's income to calculate how much that person should pay.

On the other hand, remarriage of the supported spouse results in termination of spousal support unless there is a written agreement between the parties to the contrary. Also, where the supported spouse is living with a romantic partner it is presumed that there is a decreased need for spousal support [which could justify the court in lowering or terminating spousal support upon a request by the paying spouse].

Jamie Elmer