How the Court Determines Spousal Support in California

Spousal support, also known as alimony, is a court-ordered payment one spouse makes to another during or after a divorce. In order to determine what type of spousal support you can receive, California weighs various factors that we’ll cover in this article. Let’s dive in.

Temporary vs. Permanent Spousal Support

California generally lumps spousal support into two categories: temporary and permanent.

Temporary spousal support applies after the date of separation during the pendency of your divorce case prior to it being finalized.

Conversely, permanent spousal support (or long-term support) is determined at the end of a divorce case and impacts payments post-divorce.

California courts also use different metrics to determine temporary versus permanent spousal support.

How Temporary Spousal Support is Determined in California

Often one spouse is in a shaky financial position upon separation. In this case, they can ask for spousal support as soon as their case begins.

The court can grant temporary support as a monthly payment from one spouse to the other during their divorce case. If a couple cannot agree on spousal support payments independently, then a judge will step in to determine this number.

In this case, a California judge considers several factors to determine spousal support:

• The needs of the spouse with less money
• The ability of the supporting party to pay spousal support
• How the higher-earning spouse’s income compares to the amount required of the lower-earning spouse

Most commonly, family law professionals and judges will use a DissoMaster software to determine this temporary spousal support payment.

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The DissoMaster program has been around for over 20 years and is certified by the California Judicial Council to calculate family support obligations. DissoMaster software takes the couples’ incomes to generate a report with a “fair” spousal support payment.

The DissoMaster determines the spousal support payment, if any, by considering a number of factors and figures in its calculation, such as:

• Taxable income, including capital gains, dividends, and social security
• Retirement plan contributions
• Health insurance payments
• Union dues
• Property tax and/or deductible interest expense

If you or your partner’s financial situation changes during divorce proceedings, you can also request a change to the temporary support payment. Once you finalize the divorce, any permanent spousal support agreements go into effect.

How Permanent Spousal Support is Determined in California

Once your divorce is final, you may receive permanent, or long-term, spousal support. This is most common for long-term marriages, or when one spouse earns significantly more money than the other.

Permanent spousal support is determined differently than temporary support. A judge determines permanent support by considering several “big picture” factors, known as the California Family Code 4320 factors.

These encompass the following elements:

• Length of the marriage
• Age & health
• Respective incomes
• Earning capacity (how each person’s skills and education impact their ability to gain employment in the current job market)
• Standard of living while married
• Amount of assets and debts
• How much one spouse contributed to the other’s education, training, career, or professional license
• Needs of the person asking for spousal support
• Ability to pay for the person paying the spousal support
• Impact of tax laws on spousal support
• History of domestic violence
• How caring for any children may have impacted either partner’s career, and how working will affect dependent children

California judges use these factors to take a holistic view of each partner’s financial position and determine the spousal support based on historical income and factors. Depending on the circumstances, the Court may look at a window of 2 to 5 years of income to determine permanent spousal support.

Unless otherwise agreed upon, permanent spousal support remains modifiable based on a change of circumstances (e.g. change in income). However, spousal support generally does not increase post-separation since it will most likely be capped by the marital standard of living, and the income earned during marriage.

What is Considered Income for Spousal Support?

As a general rule, anything that you pay income tax on is eligible for spousal support. This may include income from a job, stock dividends, a self-owned business, or property rental, to name a few. That means that, even if you’ve inherited assets, any income derived from those assets could also be considered in calculating spousal support.

How Long Does Spousal Support Last?

In general, permanent spousal support lasts as long as the judge deems it reasonable for the lesser-earning spouse to financially get on their feet.

However, there are some general parameters to this timeframe. For example, for marriages lasting less than ten years, support may last half the length of the marriage.

But for marriages that last more than ten years, there’s no hard and fast end date attached to spousal support. This stems from the “ten-year rule” outlined in California Family Code Section 4366.

Simply put, the court maintains the authority to award spousal support indefinitely in marriages of ten years or longer, unless otherwise agreed upon. This doesn’t necessarily mean that one spouse is obligated to pay spousal support until the end of time (though this is sometimes the case). Duration of payments depends on several factors including earning potential and contribution to the marriage.

Having said that, spousal support can end for a few specific reasons:

1. You and your partner agree on an end date in writing, and the court signs off on it
2. The court orders that it ends
3. The supported partner remarries
4. Either partner dies

Short of any of the above reasons, a judge may set an end date based on how long it will reasonably take the supported spouse to become self-sufficient.

Including Spousal Support In A Prenup

Spousal support may not be top of mind when you’re getting married, but there are plenty of great reasons to include a clause in your prenup that addresses it.

First, a spousal support clause can help make a compelling case for your desired payment arrangement in the event of divorce, since you agreed on the number collectively and in good faith.

This may be especially helpful for parents that take time away from their careers to care for children, causing them to fall behind on professional achievements that would have put them in a better financial position.

Further, having a conversation with your partner about spousal support helps frame your financial and family planning goals. These discussions clarify expectations around who will be the primary breadwinner or stay home with the kids.

Going into your marriage as a collective front will set the stage for more transparent communication instead of figuring it out on the fly.

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A prenuptial agreement can address spousal support in the event of divorce by limiting the duration and/or the amount of spousal support one party may receive. In addition, it can either grant or deny the Court jurisdiction to consider specific forms of income to be included in the spousal support calculation.

For example, if you receive regular trust distributions or regularly occurring gifts from family, or even regularly incurring income from inherited assets, these payments could be considered income for the purposes of calculating spousal support.

However, with a prenuptial agreement, you and your partner can agree that these payments will not be part of the calculation to preserve your separate property wealth, and allow your family to feel comfortable continuing to give you these gifts.

It is important to note, though, that the conscionability or fairness of a spousal support waiver and/or limitation in a prenuptial agreement is measured at the time of divorce. Therefore, if a Court believes that the agreement regarding future spousal support is unconscionable or extremely unfair, it may have the right to invalidate the spousal support provisions in the agreement.

Final Thoughts on Spousal Support in California

To achieve your marital goals, having a roadmap for spousal support well in advance of the need for it is a surefire way to align yourselves as a couple and avoid what can lead to lethal miscommunication in your marriage.

Interested in talking through the ins and outs of spousal support in California and how a prenup can facilitate your marital goals? Let’s connect — I’d be happy to answer your questions on a consultation call.