Spousal support is intended to try and help the party with less income maintain the prior marital lifestyle during and after a divorce, to the extent possible. In doing so, 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 of the parties, which is a person’s income before taxes are taken out. That amount is then adjusted up or down depending on other “factors” in 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 property taxes. If a party pays for health insurance, required union dues, or child / spousal support monies for a prior relationship, 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.” This order requires that the support amounts be withheld directly from the paycheck of the spouse who has been ordered to pay support. The monies that are collected are then paid to the supported spouse, often directly from the payor spouse’s payroll company.
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 often make what is known as a Pendente Lite (pending 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, Dissomaster or Xspouse. Both programs have been approved for use by the California Judicial Council.
A permanent support order is a different animal and is typically entered one of two ways. The first way is when the support request is calculated by the Court at a hearing or during trial. The other way is through an agreement called a stipulation, which is then made a binding Order of the Court. At trial, or in any setting where the Court is asked to make a permanent support order, the Court is prohibited from using the Dissomaster and Xspouse programs and must instead consider the numerous factors set forth in California Family Code § 4230.
Often when making a permanent support order, the Court will also issue what is known as a Gavron Warning. A Gavron Warning is a notice to the supported spouse that they must make a good faith effort to become self-supporting within a reasonable period of time, often one half of the life of the marriage. If the supported spouse fails to make that effort, they run the risk of having the court reduce or eliminate their spousal support award at the request of the payor spouse.
Typically, the support awarded in a permanent spousal support order will be substantially less than a Pendente Lite (temporary order) for a number of reasons. For the purposes of payment of income tax, spousal support is no longer a tax-deductible expense, nor can child support payments be deducted, either.
Family Code § 4230 sets forth several “factors” that must be considered by the Court when making a permanent support order. In practice, for a long-term marriage, which has been defined as a marriage that lasts ten (10) or more years, the Court will often award spousal support for at least one half the length of the marriage. Keep in mind that the 4320 factors will often have a direct effect on the amount and length of the support awarded, given that the stated policy of the State of California is for a supported spouse to become self-supporting within a reasonable period of time.
There are occasions where a supported spouse will either refuse to work, intentionally work less hours or be unable to hold a job for any meaningful period of time either to avoid paying support, or in an attempt to receive more support. In those cases, we can ask the Court to “impute” income to the other party, based upon their bad faith actions and their true earnings ability.
Properly calculating support can be tricky at times and working with a Certified Family Law Specialist can help ensure that the court makes the right support orders.