Answers To Your Inquiries About Spousal Support Issues

California laws surrounding spousal support – also called spousal maintenance or alimony – are immensely complicated. Our family law attorneys at Nelson Kirkman can answer any questions you have. As experienced divorce lawyers serving the Orange County area since 1998, we have all the information you need.

What causes the court to order spousal support paid from one party to the other?

If the court finds that one party needs support and that the other party can pay, it will order spousal support. Spousal support that is payable before a final judgment is temporary support, while after the judgment it is referred to as permanent spousal support.

What issues impact the divorce court’s decision regarding a spousal support order?

Temporary spousal support is support payable to the supported party before a judgment in the divorce is reached. Temporary spousal support is designed to maintain the status quo in living conditions for the parties to whatever extent is possible. Temporary support may be ordered at the Request For Order (RFO) stage, and the level of support is frequently determined with the use of computer programs. Temporary spousal support may be ordered retroactively to the filing date of the RFO.

What is the definition of permanent spousal support?

Permanent spousal support is ordered as part of the divorce judgment. The “permanent” name does not indicate that the support lasts for the party’s entire life, but rather draws a distinction between support ordered at trial and temporary spousal support ordered before judgment. Other names for permanent spousal support are post-judgment or long-term spousal support.

What is the difference between temporary spousal support and permanent spousal support?

Temporary spousal support is designed to maintain the status quo for each party as the divorce works its way through the legal system. Permanent spousal support is based on family law. Permanent spousal support may be higher than temporary support, but the temporary spousal support awarded may not be the basis of a permanent spousal support order (IRMO Schulze).

Can permanent spousal support awards be structured in different ways?

There are four common structures for permanent spousal support awards.

• The amount of spousal support
• Substantive stepdown: A reduction in the amount of support at a later date defined by the court
• Jurisdictional stepdown: The reduction of an existing spousal support order to an order with no payments but giving the payee the right to seek support at a later time
• Reservation of jurisdiction: No spousal support payments are ordered but the payee has the right to seek spousal support down the road

What factors does Family Law Code § 4320 evaluate for settling permanent spousal support?

While temporary spousal support is designed to maintain the status quo in the parties’ lifestyles, permanent spousal support is based on law, specifically, Family Law Code § 4320. The court cannot set permanent spousal support based purely on the computer software used in other situations.

Family Law Code § 4320 considers the following factors.

(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:

(1) 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.

(2) The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.

(b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.

(c) The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.

(d) The needs of each party based on the standard of living established during the marriage.

(e) The obligations and assets, including the separate property, of each party.

(f) The duration of the marriage.

(g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.

(h) The age and health of the parties.

(i) All documented evidence of any history of domestic violence, as defined in Section 6211, between the parties or perpetrated by either party against either party’s child, including, but not limited to, consideration of:

(1) A plea of nolo contendere.

(2) Emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party.

(3) Any history of violence against the supporting party by the supported party.

(4) Issuance of a protective order after a hearing pursuant to Section 6340.

(5) A finding by a court during the pendency of a divorce, separation, or child custody proceeding, or other proceeding under Division 10 (commencing with Section 6200), that the spouse has committed domestic violence.

(j) The immediate and specific tax consequences to each party.

(k) The balance of the hardships to each party.

(l) The goal that the supported party shall be self-supporting within a reasonable period. Except in the case of a marriage of long duration as described in Section 4336, a “reasonable period of time” for purposes of this section generally shall be one-half the length of the marriage.  However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.

(m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4324.5 or 4325.

(n) Any other factors the court determines are just and equitable.

Does the level of temporary spousal support set a precedent for permanent spousal support?

No, the level of temporary spousal support does not play a role in the determination of permanent spousal support (IRMO Schulze). Permanent spousal support is determined based on the application of the family law code.

Does Family Code § 4320 consider the marital standard of living?

Yes, the marital standard of living is one factor considered by Family Code § 4320. The marital standard of living should never be considered the upper or lower limit of spousal support but may be considered as a benchmark value. The standard of living may be defined by the court with a specific dollar value, or a more general statement such as “upper-middle-class standard of living” (IRMO Kerr).

How does the court measure the marital standard of living?

Typically, the marital standard of living is based on either the ongoing living expenses of the marital household, or the net income of the divorcing parties. The net income approach treats investments and other assets as a lifestyle choice, so that investing or paying for a vacation are treated as the same thing (IRMO Winter, IRMO Drapeau, and IRMO Weinstein).

Does the marital standard of living matter less after separation?

Yes, the marital standard of living diminishes in importance as the time after separation increases (IRMO Rising).

Can the court force the sale of assets to pay spousal support?

Yes, the court may require the payer-party to liquidate certain assets to pay spousal support in certain circumstances (IRMO Deguigne).

Is the marital standard of living of both parties considered important by the other?

Yes, the court must consider the marital standard of living of both divorcing parties, not just the spouse who will receive support (IRMO Andreen).

How long will the court order spousal support to last?

Although the court has wide discretion in ordering spousal support, a general guideline can be found based on the length of the marriage. If a marriage lasted less than 10 years, the court typically awards spousal support for half the term of the marriage. So, a marriage that lasts eight years will likely result in four years of permanent spousal support. The court can order a longer or shorter period of support as it deems appropriate. For a long-term marriage of more than 10 years, spousal support will generally continue until the payee-spouse is remarried or the death of either party. Spousal support payments will typically continue unless the payee-spouse becomes self-supporting.

Can the court order spousal support based on fluctuating income?

Yes, the court can structure spousal support with a base support payment and a supplemental support payment based on bonuses, commissions, stock options or other types of compensation that cause a payer-spouse’s income to fluctuate. The supplemental payments in such cases are called Ostler-Smith payments (IRMO Ostler and Smith).

Can the court order spousal support to decrease after a certain period of time?

Yes, the court can order a reduction in spousal support payments at some time in the future, which is known as a “substantive stepdown.” The court generally orders a substantive stepdown when the evidence shows that the payee-spouse’s need for support will also be reduced in the future.

Can the court order that spousal support be reduced to zero?

Yes, the court can order that spousal support be reduced to zero at some point in the future, which is known as a “jurisdictional stepdown order.” The court must find that the payee-spouse’s need for support will also reach zero on the date chosen.

How important are the incomes of the parties in determining spousal support?

Yes, the court can order that spousal support be reduced to zero at some point in the future, which is known as a “jurisdictional stepdown order.” The court must find that the payee-spouse’s need for support will also reach zero on the date chosen.

How does the court view a lump-sum severance payment relative to spousal support?

The court views a lump-sum severance payment as being spread out over the term of employment it applies to instead of allocating it to the single month in which it is received (IRMO Tong and Samson).

How does the court view stock options relative to spousal support?

Unvested stock options, restricted stock units, and other types of equity-based compensation are characterized as income by the court once they become vested (IRMO Kerr and IRMO Macilwaine).

What are the gray areas in defining income?

There are multiple gray areas in defining income that must be carefully worked through. For example, free rent or meal allowances may be considered income by the court. Proceeds from the sale of investments may be income, but if it is reinvested, it typically is not income. Deferred salary and recurring payments from family, as opposed to one-time gifts, are considered income.

Does the court average earnings over a period of years, or use the last 12 months of income?

Although the court has wide discretion in choosing what period of time to consider in examining income, it must choose a period of time that is representative of the income (IRMO Riddle). If one party started a new career in the last year, looking at a four-year average of incomes is not likely to be representative of the party’s income on an ongoing basis.

Can the court impute income associated with assets that are not earned?

Yes, the court can impute income based on the assets of each party. For example, the court may impute earnings based on the payee’s community property in a new marriage (IRMO Martin). The court can also impute income based on the sale of assets (County of Kern v. Castle).

Can the court order a divorcing party to undergo a vocational rehabilitation examination?

Yes, the court may order a divorcing party to undergo an examination by a vocational rehabilitation expert to determine their ability to become self-supporting.

Can the court impute income to a party?

If a divorcing party voluntarily quits their job or lowers their income, the court may impute their income to the previous level of income to calculate spousal support, but the burden is on the party claiming underemployment (IRMO Regnery). Case law is split if the motivation for suppressing income is relevant to the court (IRMO Meegan [Yes] / IRMO Ilas [No]). If the court is going to impute income, it must do so for a normal workload of an individual in a similar job and not include overtime or excessive hours worked (IRMO Simpson).

Can an order for temporary spousal support be modified?

Yes, a temporary spousal support order can be modified, but most courts require the finding of a change in circumstances, unless the request is based on domestic violence.

Can a permanent spousal support order be modified?

Yes, the court can modify a permanent spousal support order based on a change in circumstances (IRMO Clements).

What are the circumstances that support modifying spousal support?

There are many circumstances in which a change to a spousal support order may be supported. Here is a selected list of common issues:

• • • Increase in income of the payee-spouse
    • Decrease in income of the payer-spouse
    • Discharge of community debts assigned to payee
    • End of child support payments
    • Payee not becoming self-supporting
    • Support of adult children
    • Payee cohabiting or starting a romantic relationship
    • Increase in child support payments
    • Payer-spouse reaching retirement

What events may not be considered a change of circumstances for spousal support?

The following issues frequently are found not to constitute a “change of circumstances” indicating the need to modify spousal support:

• • • Payee-spouse paying living expenses of adult children and grandchildren
    • Passage of time after divorce
    • Access to retirement funds without penalty
    • Increased income for the payer-spouse without the payee showing the prior payments didn’t meet the marital standing of living
    • Payee studying for an advanced degree instead of working a job
    • Payee’s ongoing physical disability following a short marriage

Do expectations have relevancy regarding spousal support?

Yes, the reasonable expectations of each party as expressed in a settlement agreement may impact a “change of circumstances” test when one party wants to modify a spousal support order (IRMO Dietz).

Does the payer’s income increasing justify spousal support increasing?

By itself, an increase in the payer-spouse’s income level does not justify an increase in spousal support. The payee-spouse must show that the existing level of support does not meet their needs (IRMO Hopwood and IRMO Hoffmeister).

Can the court examine a payee’s work history since separation to determine if a support modification is appropriate?

Yes, the court can look at the payee’s work history to determine if a good faith attempt to obtain employment and become self-supporting has been undertaken. The entire history is relevant, not just the payee’s action since the last order (IRMO Schaffer). A failure to make a reasonable effort to work may be grounds not to extend spousal support.

Can the payee cohabitating be a reason to modify spousal support?

Yes, spousal support may be modified based on the payee cohabiting in a romantic relationship. There is a presumption (which is rebuttable) that cohabiting lowers the payee’s need for support. The payee does not have to be remarried for this presumption to stand.

Can the court make a spousal support order nonmodifiable?

No, a divorce court cannot make a spousal support order non-modifiable unilaterally, that requires the consent of both parties (IRMO Zlatnik).

Can spousal support be used for Family Code § 271 financial sanctions?

Yes, spousal support can be a source of Family Code Section 271 sanctions payable to the other party but must not cause unreasonable financial problems (IRMO Pearson).

Can spousal support payments be deducted from taxes?

No, spousal support payments made based on orders entered after December 31, 2018, are not tax deductible. Spousal support payments are taxable income for the payee.

Does documented domestic violence impact the spousal support order?

Yes, the court must take the history of documented domestic violence into consideration while setting the level of spousal support (IRMO Priem and IRMO J.Q. & T.B.).

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