Under the California Family Code, the common term “alimony” is referred to as “spousal support.” Spousal support “means support of the spouse of the obligor.” (Fam. Code sec. 142.) Obligor “means a person who owes a duty of support.” (Fam. Code sec. 3550(a)(2).) A spousal support order “means a support order for a spouse or former spouse of the obligor.” (Fam. Code sec. 4901(t).)
Subject to other statutory provisions which may affect such a duty, a person shall support the person’s spouse. (Fam. Code sec. 4300.) This means that the duty to support a person’s spouse exists regardless of whether a spousal support order exists. However, a person is not liable for support of the person’s spouse when the person is living separate from the spouse byan agreement between them, unless support of the spouse is part of the agreement. (Fam. Code sec. 4302.)
In a proceeding for dissolution of marriage, either party has the right to seek an order for temporary spousal support prior to trial, for permanent spousal support at trial, or for a modification of spousal support after trial, with certain exceptions. A request other than for an initial temporary spousal support order generally requires a significant change in circumstances (which usually means a significant change in the income of one of the parties, but it can refer to a substantial change in any one or more of the spousal support factors itemized below).
In San Diego County, the Superior Court generally uses the DissoMaster software program to calculate the Santa Clara County Guideline amount for a temporary spousal support order pending trial, unless the judicial officer believes any of the spousal support factors in Family Code section 4320 influence the amount of temporary support that should be paid. The Santa Clara County guideline calculation is based on the parties’ relative net incomes (after taxes and after any child support are paid):
Temporary spousal or partner support is generally computed by taking 40% of the net income of the payor, minus 50% of the net income of the payee, adjusted for tax consequences. If there is child support, temporary spousal or partner support is calculated on net income not allocated to child support and/or child-related expenses. The temporary spousal support calculations apply these assumptions. (Santa Clara County Local Family Rule 3c.)
Once the temporary amount of spousal support is determined, a party will be required to show a significant change in circumstances justifying a modification of that amount pending a permanent spousal support order at trial.
Conversely, at trial, family law judges are required to analyze the circumstances in light of the following fourteen (14) Family Code section 4320 factors in fashioning a permanent spousal support order:
- 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; and, (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.
- 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.
- The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.
- The needs of each party based on the standard of living established during the marriage.
- The obligations and assets, including the separate property of each party.
- The duration of the marriage.
- 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.
- The age and health of the parties.
- Documented evidence of any history of domestic violence, as defined in Family Code section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.
- The immediate and specific tax consequences to each party.
- The balance of the hardships to each party.
- The goal that the supported party shall be self-supporting within a reasonable time. Except in the case of a marriage of long duration as described in Family Code section 4336 [i.e., a legal presumption exists (meaning the burden of proof shifts to the other party to prove otherwise) that a marriage is of long duration if ten (10) years pass between the date of marriage and the date of separation], a “reasonable period of time” for purposes of Family Code section 4320 generally shall be one-half the length of the marriage. However, nothing in Family Code section 4320 is intended to limit a family law judge’s discretion to order support for a greater or lesser length of time, based on any of the other factors in section 4320, in Family Code section 4336 and the circumstances of the parties. [This provision has created a general misconception that spousal support always lasts half the length of the marriage. Family law judges have authority under section 4336 to find under appropriate circumstances that a marriage of less than ten years between the date of marriage and the date of separation is a marriage of long duration. Further, section 4320 makes clear that an award of spousal support in a short-term marriage will not necessarily last one-half the length of the marriage – the duration may be greater or less than half the length of the marriage.]
- The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Family Code section 4325.
- Any other factors the family law judge determines are just and equitable. [This is the catch-all provision, allowing the judge to consider any relevant fact(s) in awarding spousal support as long as the judge thinks its use is fair.]
In setting permanent spousal support at trial, the family law judge cannot use the DissoMaster software program to calculate the amount. However, if none of the Family Code section 4320 factors influence the support amount otherwise, it has been my experience that some judges (if not all) will keep an eye on the DissoMaster’s Santa Clara County Guideline calculation when ordering permanent spousal support; others will use the forty percent (40%) rule of thumb, i.e., spousal support will be ordered in an amount roughly equal to forty percent of the paying spouse’s net income minus one-half of the receiving spouse’s net income.
Once a permanent spousal support order is in place, modification requires a significant change in circumstances justifying a modification. A party may be sanctioned (fined) by the Superior Court for requesting a modification of a permanent spousal support order where no significant change in circumstances exists. The sanction comes in the form of attorney fees and costs incurred in defending the request for the modification.
Termination of Spousal Support
Generally, a spousal support order terminates at the end of the period provided in the order, unless the Court retains jurisdiction to extend the order. (Family Code sec. 4335.) If the order provides no termination date and the parties have not agreed in writing otherwise, spousal support terminates on the death of either party or the remarriage of the supported party. (Family Code sec. 4337.)
Due Date of Support Payments
Spousal support is due and payable on the date specifically stated in the order. (Family Code sec. 5204.) If spousal support is due and payable each month but no date certain for payment is provided in the order, then each month’s spousal support payment is due and payable on “the last day of the month in which the support payment is to be paid.” (Family Code sec. 5204.)
If spousal support is due and payable on a date certain each month and the supported party remarries after that date certain but in the same month, the full amount of that month’s support is still due, i.e., it cannot be pro-rated. For instance, if spousal support of $1,200.00 is due on April 1st, and the supported party remarries on April 5th, the supporting (paying) party cannot on a per diem basis withhold, offset, or seek reimbursement for, any of the $1,200.00 due and payable on April 1st. (Morrow v. Morrow (1969) 2 Cal.App.3d 55.) This is so because the supported party is entitled to the full amount of support due and payable on a specific date each month; he or she is entitled to enforce the order the next day and keeps the money paid or payable prior to remarrying.