San Francisco Bay Area Spousal Support Attorney
We handle simple and complex spousal support issues with creativity and expertise. Creativity and expertise can significantly impact family court results and help achieve fair settlements through negotiation or mediation.
When a couple legally separates or divorces, the court may order one spouse or domestic partner to pay the other a certain amount of support each month. This is called “spousal support” for married couples and “partner support” in domestic partnerships. It is also called “alimony.”
How to Start Spousal or Partner Support
In order to receive spousal or partner support, there must be a court case. The parties can agree on spousal support and sign a stipulation, or support can be ordered through contested hearings. A spouse or domestic partner can ask the judge to make a spousal or partner support order as part of one of these types of cases:
- Divorce, legal separation, or annulment; or
- A domestic violence restraining order.
Spousal support is generally not available in annulments unless at least one party can establish it is not a valid marriage, usually because that person doesn’t know their spouse is already married to someone else. This is called a “putative spouse” status. Why does putative spouse status matter so much? As usual, it comes down to money: Putative spouses are entitled to various benefits of marriage, including division of “quasi-marital property” on dissolution and damages for wrongful death of the other party. Also, courts have decided that the term “surviving spouse” includes a surviving “putative spouse” for such purposes as when a person dies without a will.
You can ask for spousal or partner support to be paid while your case is going on. This is called a “temporary spousal support” or a “temporary partner support.” Support can also be ordered once the divorce or legal separation becomes final, as part of the Final Judgment or Decree of Legal Separation. When it is ordered once the case becomes final, it is called “permanent (or long-term) spousal or partner support.”
Different rules apply to how temporary support is figured than those that apply to awards of permanent or long-term support.
What is “Temporary” Spousal Support?
Temporary spousal support is intended to maintain the financial status quo at the time of separation when people are moving from one into two households. It has little to do with the length of the marriage. It tends to be higher than support that is part of a judgment.
In fixing temporary support, courts focus upon the historical income and expenses existing before the separation – usually the prior 12 months. Each person must file and serve an Income and Expense Declaration before the hearing.
For temporary spousal or partner support, judges in many courts use a formula to calculate the amount. Courts in different counties may use slightly different factors in calculating temporary support. Each Superior Court’s local rules explain how temporary support is calculated.
Most California counties have formulas that determine the amounts for temporary spousal support.
The formulas take into account each spouse’s gross income, if there are children the respective custodial timeshares between the parents, tax status and other tax deductions in order to determine ‘net income’. The formulas are expressed in a computer program called Dissomaster that is used by most of the local courts.
Where a party is a self-employed spouse, their net pre-tax earnings must be determined after deducting business expenses. This can be complicated, because what is deductible for purposes of Schedule C to a tax return is not binding upon California courts for purposes of calculating support. What is deductible for IRS purposes may be added back for support purposes. Only certain expenses matter for purposes of temporary support in California. Most personal expenses like utilities and credit card debt do not matter.
Since the court determines the support obligation weeks after a request for support is made (by way of a “Request for Orders” (RFO) application with is filed with the Superior Court), it typically makes the support order retroactive to the date the request was filed. Spousal support will only be issued retroactive to the date you file your RFO, so it is smart to file your application as soon as possible.
What Is “Permanent” Spousal Support?
In long-term marriages or domestic partnerships, typically in excess of 10 years, ‘permanent’ spousal support is not determined by a guideline formula but instead by Family Code § 4320, which lists a number of factors that Courts must examine. In many cases considering these factors results in a lower support entitlement or obligation than at the temporary stage, but the chief considerations are (1) the length of the marriage or domestic partnership; (2) the marital standard of living established during the final years of the marriage, (3) what each person pays or can pay to keep the standard of living they had during the marriage; and (4) the age and health of both people. The permanent support order then becomes part of the Final Judgment.
Earning capacity and the standard of living during the marriage or partnership
A judge must consider what each spouse or partner can earn to keep a standard of living close to what they each had during the marriage or partnership.
To do this, the judge looks at the:
- Marketable skills of the spouse or partner getting support;
- Job market for those skills;
- Time and expense the spouse or partner who gets support will need to get the education or training to develop more marketable skills or to get a job;
- Extent that the earning capacity (the ability to earn income) of the spouse or partner who gets support was impaired by periods of unemployment during the marriage/partnership when he or she was devoted to domestic duties.
Length of the marriage or domestic partnership
The length of a permanent or long-term spousal or partner support order depends on the length of the marriage or domestic partnership. The goal of spousal or partner support is that the spouse getting support should be able to support themself within a reasonable period of time.
In general, a “reasonable period of time” may be one-half the length of the marriage/partnership, if it is not a long marriage. But the judge has the power to make a different decision given the specific circumstances of the case.
There is an important exception. When a marriage or partnership is considered a “long-term” (usually 10 years or more), the judge may not set an end date for the spousal support.
The length of the marriage or domestic partnership is from the date of the marriage to the date of the separation. The date of separation can have very important consequences when it comes to deciding spousal or partner support and dividing assets and debts.
Domestic violence and spousal or partner support
When deciding spousal or partner support, the judge must consider evidence of any history of domestic violence between the parties. When the spouse or partner that would pay the support is the abusive person, the judge will consider the emotional distress resulting from the violence suffered by the spouse or partner to be supported.
The judge will also consider any history of violence at the hands of the spouse or partner to be supported against the person that would pay the support. The law presumes that an abusive spouse or partner, who has a criminal conviction for domestic violence against the other spouse or partner, should not receive spousal or partner support.
Complications often arise when a non-custodial parent refuses to find employment or when a payor spouse fails to report their earnings honestly or financial benefits they are receiving through their employment.
If you are ordered to pay spousal support and have a new mate or spouse, their income is generally irrelevant for purposes of setting either temporary or permanent support. But, if you are the spouse or partner receiving support and live with a new mate, that may create a presumption that you need less money for need for support.
If you have to pay spousal support to your former partner, you may want to consider having them evaluated by a vocational counselor. The purpose of the evaluation is to assess the current and/or future ability of the supported spouse or partner to work and earn an income. If the supported spouse does not make an effort to obtain employment based on the vocational evaluation, it may result in the court lowering or terminating their spousal or partner support.
Remarriage of your former spouse, or a new domestic partnership, will terminate your spousal support obligation. So will the death of either party.
Support orders are very important. You must have an experienced support attorney who knows the legal details to obtain a fair and just outcome at the outset because once the Court makes an initial order, you could be stuck with it for years.