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Core insights:
- California uses factors, not a single rigid formula, to set long-term spousal support, with guidance from Family Code Section 4320.
- Courts distinguish between temporary support (during the case) and permanent/long-term support (after judgment), and they calculate them differently.
- Judges weigh earning capacity, sacrifices made for the other spouse’s education/career, and the paying spouse’s actual ability to afford support.
- Marriage length, each spouse’s age and health, and any history of domestic abuse can significantly increase the amount and/or duration of support.
- The law expects the supported spouse to become self-supporting within a “reasonable” time. However, courts can extend support when the facts justify it.
Spousal support is one of the most crucial parts of a divorce. Support orders can determine the standard of living of both spouses during and after the divorce proceedings. Every couple is unique, which is why there is no standard formula for calculating permanent spousal support in California. Courts consider several factors listed in the California Family Code to establish a fair and equitable support order. At Bremer Whyte Brown & O’Meara, our spousal support attorneys guide clients and assertively protect their rights and futures.
What Is Spousal Support?
Spousal support, or alimony, refers to the money paid by one spouse to the other either during the pendency of the divorce and/or after a divorce. Temporary spousal support is determined during divorce proceedings to make sure that both spouses can maintain their standard of living and cover essential expenses. Permanent spousal support is the alimony amount paid after finalizing the divorce.
In California, it is expected that both spouses will make earnest efforts to become self-supporting. Alimony is intended to give the supported spouse the financial resources to care for themselves and look for work. There are some unique situations in which spousal support must be paid indefinitely, but California courts typically prefer that everyone be able to support themselves financially.
Temporary vs. Permanent Spousal Support
Temporary spousal support is ordered during a divorce or legal separation. California courts have authority to order or deny Request for Order motions at their discretion based on the evidence. Both spouses must provide an income and expense declaration that shows their financial position. Temporary spousal support is ordered to help the spouse with the lower financial status continue paying their bills and every day expenses.
Permanent, or long-term, spousal support is ordered at the end of the divorce process. There is far more consideration put into calculating long-term support. Judges can use a simple formula to calculate temporary support. Yet, judges are not permitted to use a formula to calculate permanent support, and instead must analyze each factor as outlined in Family Code 4320. Each case requires a deep understanding of the finances of both spouses, their needs, and earning capacity.
How Is Spousal Support Calculated?
Temporary spousal support is ordered based on the lower-earning spouse’s needs and the other spouse’s ability to pay for those needs. To calculate temporary spousal support, judges use the California guideline formula to determine an appropriate amount. Permanent spousal support, however, requires an in-depth evaluation of several critical factors. California Family Code Section 4320 lists the factors judges must consider when ordering spousal support.
Earning Capacity
First, the court must consider each spouse’s capacity to earn income sufficient to maintain the marital standard of living. To determine earning capacity, courts consider:
- The supported spouse’s skills and the job market for those skills
- The time and financial requirements for the supported spouse to develop their skills
- The need for education or retraining to acquire marketable skills
Courts also consider how much the supported spouse’s earning capacity has been affected by being unemployed during the marriage. It’s common for one spouse to leave their job to care for the home and children, especially if one spouse earns significantly more than the other. Both spouses must disclose their exact income, assets, and debts so the court clearly understands each party’s financial obligations. The tax consequences of the divorce must also be considered during this process.
Contribution to Education and Career
The court doesn’t just look at current income. It also weighs the sacrifices each spouse made to build the other’s career. When one partner helps pay for the other’s education or steps out of their own job so the other can take on a demanding role, that financial and career trade-off matters. In those situations, judges may order higher or longer-term spousal support to reflect the money and opportunities the supporting spouse invested.
Ability to Pay Spousal Support
The court must evaluate whether the higher-earning spouse can pay spousal support based on their income, earning capacity, and living expenses. California courts typically don’t order more spousal support than the supporting spouse can reasonably afford. The supporting spouse must still be able to pay for accommodation, essential needs, and pre-existing financial obligations, such as child support and spousal support from a previous marriage.
The Needs of Each Spouse
Courts assess the needs of each spouse, based on the standard of living the couple had during their marriage. If the couple was able to cover basic living expenses, transport, entertainment, vacations, health insurance, spousal support should allow both parties to maintain a similar lifestyle. The court typically has the discretion to decide which needs are essential and which expenses aren’t a necessity.
Marriage Duration
The duration of the marriage is a significant factor in determining spousal support. In California, marriages lasting 10 years or more are generally considered "long-term marriages," and the court may retain jurisdiction over spousal support indefinitely. As a result, courts are more likely to order long-term or permanent spousal support in these cases. For example, if a couple has been married for 40 years and one spouse left the workforce early in the marriage to care for the home and family, that spouse may have become financially dependent on the other spouse's income. They may also have limited earning capacity and fewer marketable job skills, making it difficult to become self-supporting while maintaining the marital standard of living established during the marriage.
In contrast, courts generally expect spouses in shorter marriages - a marriage of less than 10 years - to become self-supporting within half the length of the marriage. While spousal support may still be awarded, it is typically ordered for a limited duration. In many short-term marriages, courts use one-half the length of the marriage as a guideline for determining how long support should continue. For example, in a six-year marriage, support may be ordered for approximately three years. However, the specific circumstances of each case, including the parties' incomes, earning capacities, needs, and contributions to the marriage, will ultimately determine the appropriate amount and duration of support. Unlike in long-term marriages, courts in short-term marriage cases are more likely to set a termination date for spousal support when the order is made.
Age and Health
Courts consider the age and health of both spouses when calculating spousal support. If one spouse is unable to work due to age, the other may have to pay a higher spousal support amount. If one spouse is young, but unable to become self-supporting due to a chronic illness, courts may order a spousal support amount that can cover the living expenses and standard of living of the spouse who cannot earn an income.
History of Domestic Abuse
If there is a history of domestic abuse within the marriage, of either spouse or the children in the marital home, the court may order the abuser to pay a higher spousal support amount. The consequences of the abuse, such as injuries, financial instability, or complete isolation, will be carefully considered to determine how much financial support the abused spouse will need to cover their living expenses and become self-sufficient after the divorce.
Additionally, California law creates significant limitations on a spouse's ability to receive spousal support if that spouse has been convicted of, or in certain circumstances found to have committed, domestic violence against the other spouse. Depending on the facts of the case, the court may reduce or deny spousal support altogether.
Timeline for Becoming Self-Supporting
California Family Code Section 4320 states that the goal is for the supported party to become self-supporting within a reasonable timeframe. In general, the “reasonable” period of time is half the length of the marriage, but this analysis is very fact specific. Courts may order support for a longer or shorter period, depending on the unique factors of the case. The spousal support code gives the court the right to consider any other factors it deems just and equitable.
The Importance of Legal Counsel
Divorce proceedings can be intense due to the emotional and financial shifts they entail. Spousal support determines a great deal of how life unfolds after a divorce, which is why it’s so important to work with a legal representative who knows how to handle complex cases. At Bremer Whyte Brown & O’Meara, we have advocated for clients in challenging positions to help them secure the future they deserve. If you are facing a divorce, contact us to schedule a consultation.
Frequently Asked Questions
Are Only Wives Allowed to Receive Spousal Support?
No, either spouse can receive spousal support. This is a common misconception about spousal support, but traditional gender roles don’t easily define modern relationships. Spousal support is determined based on many different factors, none of which consider the gender of either spouse.
Do Spousal Support Orders Ever End?
Yes, almost all spousal support orders eventually end. Spousal support is intended to give the supported spouse the resources needed to become self-supporting. There are some situations where spousal support is ordered indefinitely - but this is rare. For example, if the supported spouse is too old or ill to support themselves, the supported spouse may have a strong argument for spousal support to continue indefinitely.