Spousal Support

Spousal Support

Some of the biggest worries in a divorce are, "How am I going to get by financially?" "How much support will I be receiving or have to pay?" or "Who will be responsible for the mortgage payments on the family home?" It is important to understand spousal support and how it will be determined in your case.

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Spousal Support in California

In analyzing support obligations we must first determine if we are dealing with temporary support, that is, support which will be received prior to the final judgment in the case or permanent spousal support ordered at the time of the final judgment.

Temporary Spousal Support:

During the pendency of any proceeding for dissolution of marriage or for legal separation, the court may order the husband or wife to pay any amount that is necessary for the support of the other. A proceeding for dissolution is pending from the time of its commencement by filing the petition until its final determination on appeal or until the time for appeal has passed. Therefore, a temporary support order may be made retroactive to the date on which a petition for dissolution is filed. Often times the court will order temporary support based upon a formula approach which looks at the respective earning of the two parties. However, this approach is not set in stone. Many times one or both parties will have very little in the way of income but significant assets. The court may consider this as well.

Permanent Spousal Support:

In a judgment of dissolution of marriage or legal separation of the parties, the court may order a party to pay for the support of the other party any amount, and for any period of time, that the court may deem just and reasonable, based on the standard of living established during the marriage. The grant or denial of permanent spousal support and its amount and duration are matters that rest within the sound discretion of the trial court, and fall within the court’s equitable jurisdiction. Although not unlimited, the trial court’s discretion in determining support is broad. However, the court’s discretion must be exercised with reference to the showing made and not arbitrarily. Further, the criteria set forth in Family Code Section 4320 must all be recognized and applied correctly. A grossly inadequate spousal support order is subject to reversal as an abuse of discretion.

If temporary support was ordered, the determination of permanent spousal support at trial must be de novo, based on the circumstances existing at the time of the trial. More or less spousal support than the amount ordered pendente (temporarily) may be ordered as permanent support without a showing of changed circumstances. Courts sometimes use schedules or tables based solely on income to determine temporary support. It is almost certainly inappropriate to use these schedules as anything more than a starting point in setting permanent spousal support because the many other factors under Family Code Section 4320 must also be considered. The same is true of computer software programs that are used to compute temporary spousal support using income data only. Fixing permanent spousal support simply by the use of a computer program is an abdication of judicial responsibility because permanent spousal support must be fixed only after consideration of the applicable factors set forth in Family Code Section.

Finally, many people have heard that being married for ten years or more creates unique issues with regards to spousal support. This is true. It is considered an abuse of the courts discretion to terminate jurisdiction over spousal support on a marriage of more than ten years. This does not mean that the court cant order spousal support to terminate only that they must retain the right to order it at a later time if they do so.

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