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Duty to Support Spouse/Spousal Support (Alimony)

  • Marriage imposes a mutual duty on both parties of support. California Family Code § 720, 4300.
  • This duty is gender-neutral meaning both wife and husband have the duty to support the other spouse.

No Common Law Marriage in California

  • In order for the obligation of spousal support to arise in California, there must be a valid marriage. Hudson v. Hudson (1959) 52 Cal. 2d 735, 738, 344 P.2d 295.
  • There is no common law marriage in California. Marvin v. Marvin (1976) 18 Cal. 3d 660, 684. If the parties were never married, there is no spousal support to the other party, no matter how long the parties have cohabitated.

Family Code Section 4320

  • Family Code Section 4320 lists all the factors a court may consider in awarding spousal support.
  • Family Code Section 4320 states, “In ordering spousal support, the court must consider all of the following circumstances of the parties:

1. The extent to which the earning capacity of each spouse is sufficient to maintain the standard of living established during the marriage taking into account all of the following:

    • The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.
    • The extent to which the supported party’s present or future capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.

2. The extent to which the supported spouse contributed to the attainment of an education, training, a career position, or a license by the other spouse;
3. The supporting spouse’s ability to pay spousal support, taking into account the supporting spouse’s earning capacity, earned and unearned income, assets, and standard of living;
4. The needs of each party, based on the standard of living established during the marriage;
5. The obligations and assets, including the separate property, of each;
6. The duration of the marriage;
7. The ability of the supported spouse to engage in gainful employment without interfering with the interests of 8. dependent children in the custody of the spouse;
8. The age and health of the parties;
9. Documented evidence of any history of domestic violence between the parties or perpetrated by each party against either party’s child;
10. The immediate and specific tax consequences to each party;
11. The balance of the hardships to each party;
12. The goal that the supported party must be self-supporting within a reasonable period of time, with a “reasonable period of time” generally being one-half the length of marriage (except with respect to a marriage of long duration, as described in Family Code 4336), although the court retains discretion to order support for a greater or lesser length of time, based on any of the other factors listed in Family Code Section 4320 and the parties’ circumstances; and
13. The criminal conviction of an abusive spouse;

Subsection 14 gives the court the power to consider almost everything that has a bearing on spousal support. It is wise to be represented by counsel to determine which of these factors to present to the court.

New-Spouse/Non-Martial Partner Income Irrelevant

  • Is your soon to be ex with someone new? Is the new mate well off? It does not matter as far as Spousal Support is concerned.
  • Trial courts are statutorily barred from considering the income of a supporting spouse’s and subsequent spouse or non-martial partner when determining or modifying spousal support. California Family Code Section 4323(b); Marriage of Lynn (2002) 101 Cal. App. 4th 120, 133, 123 Cal. Rptr. 2d 611, 621.
  • Thus, your ex’s new mate’s income cannot be considered in spousal support cases, except in exceptional circumstances.

Temporary Spousal Support Order

After filing for divorce and before final judgment of divorce is entered, the court may order temporary spousal support. This temporary spousal support will continue to be paid by a party monthly until further court order or the final order of dissolution is entered. Family Code § 3600.
Although a court is required to consider all the factors Family Code § 4320, most courts will award temporary spousal support based on the income of each party and allowable deductions therefrom. In Santa Barbara Divorces, courts will use a program called the Dissomaster.  The Dissomaster uses the income of each party along with allowable deductions from income to determine an amount of temporary spousal support.

Call today for a dissomaster estimation of temporary spousal support.

Permanent Spousal Support Order

  • A Court may order a party to pay for the support of the other party in any amount, and for any period of time that the court deems just and reasonable based on the standard of living established during the marriage. California Family Code § 4330.
  • In awarding permanent spousal support, it is reversible error to use computer programs like dissomaster. California Family Code § 3830; California Rules of Court Rule 5.275; In re Marriage of Schulze (1997) 60 Cal. App. 4th 519.
  • In awarding permanent spousal support the court must consider the factors of Family Code § 4320 and determine what is just and reasonable under all factual circumstances presented. See the factors of Family Code § 4320 above.

Duration of Spousal Support

  • Long Term Marriage. There is a presumption that a marriage of 10 years or more is a marriage of long duration. In a marriage of long duration, a court may award spousal support for an indefinite period of time. California Family Code Section 4336.
  • Marriages of less than 10 years are generally considered short term marriages. Family Code Section 4320 (12) will generally operate to make spousal support awards for a marriage of less than 10 years for approximately half of the length of marriage.
  • These are just presumptions. Other factors and evidence can change the presumptions and lead to different results.

Modification of Spousal Support- Change of Circumstances Requirement

In order to modify a prior spousal support order, the moving party must show a material change of circumstances since the time of the prior order.
In order for a modification of spousal support to be granted, the court must find the supported spouse needs the modification and the supporting spouse has ability to pay.
Examples of change of circumstances which may allow for a reduction, increase or termination of spousal support:

  • Supporting spouse retires;
  • Cohabitation of supported spouse;
  • If support order is based on a particular expectation that does not occur, the failure of the expectation; or
  • Financial situation of the parties.

Examples of situations that are not sufficient change of circumstances per se for a modification of spousal support:

  • Change of law;
  • Passage of time; or
  • Remarriage or cohabitation of supporting spouse.

Local Rule 1419

Santa Barbara Court Local rule 1419 requires a party to provide certain disclosures to the other party when child support, spousal support or attorneys fees or costs are in issue. Local Rule 1419 requires a party to disclose:

If a wage earner or unemployed:

  • 2 most recent years of federal income tax returns
  • 12 most recent months of bank statements for all personal bank accounts
  • All W-2s and 1099s received in the past 12 months
  • A copy of local rule 1419; and
  • A declaration explaining the failure by the moving party to comply with any of the foregoing requirements.

If self-employed:

  • 2 most recent years of federal income tax returns
  • All W-2s and 1099s received in the past 12 months
  • A copy of local rule 1419
  • A copy of all periodic profit and loss statements and balance sheets prepared in the ordinary course of business for the past 12 months
  • A copy of all personal bank account statements and check registers for the past 12 months
  • Copy of all loan applications submitted to financial institutions or third persons for the past 12 months
  • A written offer to either supply a copy of the business books and records requested by the opposing party upon five (5) days notice or an offer to permit the opposing party or his or her attorney to inspect such books and records upon five (5) days’ notice
  • A copy of local rule 1419; and
  • Declaration explaining the party’s failure to comply with any of the foregoing requirements

If party owns more than 30% or more interest in any business entity:

  • 2 most recent years of federal income tax returns
  • All W-2s and 1099s received in the past 12 months
  • A copy of local rule 1419
  • A copy of all periodic profit and loss statements and balance sheets prepared in the ordinary course of business for the past 12 months
  • A copy of all personal bank account statements and check registers for the past 12 months
  • Copy of all loan applications submitted to financial institutions or third persons for the past 12 months
  • A written offer to either supply a copy of the business books and records requested by the opposing party upon five (5) days notice or an offer to permit the opposing party or his or her attorney to inspect such books and records upon five (5) days’ notice
  • A copy of local rule 1419; and
  • Declaration explaining the party’s failure to comply with any of the foregoing requirements

 Termination of Spousal Support

Except as otherwise ordered or agreed to by the parties in writing, the obligation to pay spousal support terminates on the death of either party or the remarriage of the supported party.

Call today for a spousal support estimate from a Santa Barbara Divorce Lawyer.

All information on this website is for information purposes only. This website and the information herein should not be construed as legal advice and should be relied on without first consulting with counsel.

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