There are two (2) types of spousal support: temporary (while the family law case is pending) and permanent (from the conclusion of your case and out into the future). Temporary spousal support is usually calculated by imputing much of the same information above as with child support into the computer program. The court may not calculate permanent spousal support off the above guideline support program but rather must hear evidence on and make factual findings pursuant to Family Code §4320 discussed below.
Generally, if a marriage is a marriage of short duration (less than ten (10) years) then spousal support will be ordered for a period not to exceed one half (1/2) the term of the marriage. If a marriage is of long duration (more than ten (10) years) then the court does not have the power to order a cutoff date for support but rather will order the support to continue until death, remarriage or further order of the court. Of course, the parties are free to agree to whatever support amount they want, for however long they want and they can even agree that the order be non modifiable regardless of what the future may hold. Spousal support does NOT automatically terminate if the supported spouse cohabitates but should the paying spouse file with the court to lessen or terminate his/her support obligation, there is a presumption that the cohabitating spouse has a reduced need for support by virtue of the cohabitation. Of course, this is not absolute and this presumption is rebuttable.
For permanent spousal support the court must hear evidence and make findings of fact as to each of the elements of Family Code §4320.
In ordering spousal support under this part, the court shall consider all of the following circumstances:
(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
(1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.
(2) The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
(b) 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.
(c) The ability to pay of the supporting party, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.
(d) The needs of each party based on the standard of living established during the marriage.
(e) The obligations and assets, including the separate property, of each party.
(f) The duration of the marriage.
(g) 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.
(h) The age and health of the parties.
(i) The immediate and specific tax consequences to each party.
(j) The balance of the hardships to each party.
(k) The goal that the supported party shall be self-supporting within a reasonable period of time. 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 and the circumstances of the parties.
(l) Any other factors the court determines are just and equitable.
A trial to determine the permanent spousal support obligation or right, if any, is always risky business for both parties. While the code is clear, the facts of your individual case may not be. Quite often, the right to long term spousal support is not an absolute right and the court’s interpretation of the facts is subjective at best. A finding that one spouse out earns the other spouse is not the sole criteria. If the spouse requesting support has made no effort his or herself to become self supporting and, instead, is intentionally malingering or intentionally staying underemployed, then the court can reserve on support and make no orders at all or can make a nominal support order considering those facts.
Unless there is an agreement otherwise, spousal support is always modifiable upon a showing of a substantial change of circumstances. If the original spousal support ordered was a stipulated order with no trial and no court findings on the 4320 factors, then before the court can modify that support order, there must be an evidentiary hearing/trial on the topic. A showing of a substantial change of circumstances would be the loss of income by one party, a disabling injury impacting work, retirement, etc.