Spousal support is intended to try and help the party with less financial means maintain the prior marital lifestyle during and after a divorce. In reality, maintaining the prior standard of living is often difficult or impossible, because of the loss of cumulative income and the increase in living costs as each party has to now support their own, separate household. When ordering support, the Court will typically order the higher wage-earning spouse to pay a portion of their earnings to the “disadvantaged” spouse, either on a temporary or permanent basis, depending largely on the length of the marriage and the needs of the disadvantaged spouse.
In its simplest terms, spousal support is based primarily on the gross income (income before taxes are taken out) of the parties and is then adjusted up or down depending on the specific circumstances of your case. For example, if the parties own a house, then the party who is paying the mortgage gets an adjustment for payment of the mortgage interest and property taxes. If the parties pay for health insurance, required union dues or support monies from a prior marriage, then other adjustments are made. In the end, using various means, a support order is entered and the Court may, upon the request of the spouse who is going to receive the support, grant an “earnings assignment order,” which requires the support amounts to be withheld directly from the paycheck of the spouse who has been ordered to pay support and then paid directly to the supported spouse by the supporting spouses’ payroll department.
Usually, early in the divorce proceedings, one of the parties will ask the Court to order “guideline” support and after a hearing on the matter, the Court will make what is known as a Pendente Lite (during litigation) order, which is a temporary order. Because this is a temporary order the Court, for expediency’s sake, can and usually does base its order on information entered into and then calculated by one of two computer programs that have been approved for use by the California Judicial Council, called Dissomaster and Xspouse. The reports prepared by each program are sometimes simply referred to as “the Dissomaster”, which is simply another way of saying that the support amount is a guideline child support amount calculated in conformity with Family Code § 4055.
A permanent support order is typically entered in one of two ways. The first way is when the matter is ultimately tried by the Court, following discovery, perhaps depositions and most of all the disclosure of mandatory information that must be exchanged between the two sides. The other way is through a settlement agreement, called a stipulation, which is then made a binding Order of the Court. At trial or in any setting where the Court itself makes a permanent support order, the Court can no longer utilize the Dissomaster or Xspouse programs and must instead consider the 18 or so factors set forth in California Family Code § 4230. Before making a support order, the Court will have to make a permanent record addressing each of the 4320 factors and setting forth its findings on each individual factor. Once that record is made, the Court will inform the parties of the amount of permanent support that is being ordered.
Often in making a permanent support order, either after being asked by one side or the other, or at times upon its own motion, the Court will issue what is known as a Gavron Warning, which is a notice to the supported spouse that they must make reasonable efforts to become self-supporting within a certain, specific time frame, usually one half the life of the marriage, or thereafter risk having a future support order entered that severely reduces or eliminates spousal support entirely. Typically, the support awarded in a permanent support order will be substantially lower than a Pendente Lite (temporary) support order for a number of reasons and you can expect a permanent support order that is 20-30% less than the permanent order. Effective January 1, 2019, for the purposes of payment of income tax, spousal support is no longer a tax-deductible expense.
Family Code § 4230 sets forth the factors that must be considered by the Court when making a permanent support order. For a long-term marriage, which is traditionally defined as a marriage which lasts ten (10) or more years, the Court will often award spousal support for at least one half the length of the marriage. Obtaining a spousal support order for the life of the supported spouse is now extremely unlikely. Keep in mind that the 4230 factors will often have a direct effect on the amount and length of the support and that the stated goal of the State of California is for a supported spouse to become fully self-supporting within a reasonable period of time. It’s not uncommon for an Ex to refuse to work, or to work less hours than they would normally work, in an attempt to lower their support obligation. People play all sorts of games with their income during divorces, thinking that they’re going to outsmart the Court. In these types of situations, there are a variety of strategies that can be employed, including seeking a vocational evaluation of the sluggard and then asking that the Court to “impute” a certain level of income to the other party, based upon their bad faith actions and true earnings ability.