December 28, 2009

Spousal Support Explained – Alimony 101

Posted in Spousal Support tagged at 6:57 pm by demetriagraves

Spousal support can be a touchy subject. The one responsible for paying normally does not know why they have to pay the support when they believe that the other person should be working. The one receiving the payments often feels that it is not enough, often feeling that they deserve more for pain and suffering.

Spousal support can be temporary or permanent. In the state of California, at the beginning of the case, temporary support may be issued. Permanent support is paid at the end of the case and is determined by a set of statutory issues. A spousal support award is not mandatory in dissolution or legal separation proceedings in California. Quite the contrary, courts have discretion (within statutory parameters) to deny spousal support altogether or to limit it in an amount and duration that reflects the ability of both parties to provide for their own needs.

It is crucial to ascertain the standard of living while married.  Below are the main factors that will be considered in California law [Ca Fam §§ 4320, 4330] in determining Spousal Support:

1. Ability to maintain marital standard of living in light of earning capacities: The extent to which the parties’ respective earning capacities are sufficient to maintain the standard of living established during the marriage.

2. Contributions to other spouse’s education, training, etc.: The extent to which the supported spouse contributed to the other spouse’s attainment of an education, training, career position or license. This may create a right of reimbursement for community contributions to one spouse’s education or training that “substantially enhances” the spouse’s earning capacity.

3. Supporting spouse’s ability to pay: The supporting spouse’s ability to pay spousal support, taking into account his or her earning capacity, earned and unearned income, assets, and standard of living. Note: A spousal support order must be consistent with the supporting spouse’s ability to pay as determined by his or her circumstances at the time of the support hearing–i.e., the obligor’s present (not past or future) circumstances (current income/cash flow, assets, earning capacity, etc.) control.

4. “Needs” in light of marital standard of living: The needs of each party based on the standard of living established during the marriage.  “Need” includes more than “bare necessities of life.” There is a well-established case law consensus that “need” must also be judged in terms of the parties’ station in life during marriage and before separation.

5. Parties’ assets and debts: The parties’ respective assets and obligations, including the separate property of each. Thus, a spouse’s separate estate (including assets allocated to each as a result of the community property division)–and the reasonable income potential therefrom–may require the “withholding” of support altogether or a termination of previously-awarded support.

6. Duration of marriage. The length of the parties’ marriage bears both on the “need” for support (whether it should be ordered) and on the amount and duration. The longer a spouse has been out of the job market on account of the marriage, the stronger the case for granting support; by the same token, a relatively short marriage can, depending on the other factors and the “totality of the circumstances,” offset alleged “need” and justify a lower level of support and/or a shorter support term.

7. Employability of custodial spouse vs. impact on children: The ability of the supported spouse to engage in gainful employment without interfering with the interests of dependent children in his or her custody. The law recognizes the overriding public policy concern for the welfare of the parties’ minor children. Theoretically, e.g., weighing all relevant circumstances, the needs of young children may justify indefinite spousal support to a custodial parent even after a relatively short marriage.

8. Age and health of the parties. On balance and after weighing all of the specific factors, age and health may warrant either an extension or withholding of support. Age and health considerations are also particularly relevant to the question of duration of support.

9. History of domestic violence: Documented evidence of any history of domestic violence between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.

10. Tax consequences: The immediate and specific tax consequences of spousal support to each party (e.g., who pays the taxes, who gets the deduction, what effect on net income).

11. Relative hardships: “The balance of hardships to each party.” This factor seems to underscore the court’s obligation to consider and weigh all of the specific circumstances in determining the appropriate amount and duration of spousal support.

12. Goal of self-support: “The goal that the supported party shall be self-supporting within a reasonable period of time.” Except in marriages of long duration, a “reasonable period of time” in which to achieve the goal of self-support “generally shall be one-half the length of the marriage.”

13. Spousal abuse conviction (mandatory factor for support reduction/termination): The criminal conviction of an abusive spouse is a mandatory factor to be considered in making a reduction or termination of spousal support in accordance with certain laws.

14. Other “just and equitable” factors: “Any other factors the court determines are just and equitable.”  This final factor is a “catch-all,” clarifying the court’s authority to consider any other circumstances, although not expressly codified, bearing on the propriety of awarding support and, if so, its amount and duration.

California recognizes both pre and post nuptial agreements. Prenuptial agreements or premarital agreements become effective when the marriage is consummated. It states that whatever property belongs to which person and also states financial responsibility. It is a legally binding contract.

The premarital agreement protects any assets that a person has prior to entering the marriage. It allows the owner to maintain possession.

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