Spousal Support

Commonly known as alimony, spousal support is a challenging topic that can generate conflict between couples. Most parents readily acknowledge that they have a moral duty to support their children, and their ability to do so may be a matter of pride. Supporting a former spouse, however, is a concept that often meets with some resistance. While some individuals will acknowledge that their former spouse is entitled to payments for a certain period of time, others struggle with the thought of continuing to support their former spouse long after divorce.

Here are some of basic things you should know about spousal support in California:

Marriages broadly fall into two categories: marriages of long duration (over 10 years) and marriages of short duration (under 10 years).

For a marriage of short duration, spousal support payments typically continue for one-half the length of the marriage (i.e., 3 years for a 6-year marriage).

For a marriage of long duration, spousal support may be indefinite, but a court may also order a conditional termination date (i.e., payments terminate after 10 years unless the receiving spouse successfully petitions the court to extend payments) or parties may mutually agree on fixed termination date.

Temporary spousal support is typically set by reference to a schedule based on income.

Permanent spousal support is based on a court’s analysis of several different factors, including the income of each spouse, living expenses, the standard of living enjoyed by the couple during the marriage, and the future earning capacity of each spouse.

Spousal support may be modified upward if the receiving spouse demonstrates a reduction in income or an increase in expenses.

Spousal support may be modified downward if the receiving spouse cohabitates with an individual of the opposite sex.

Unless otherwise agreed upon by the parties, spousal support terminates when the receiving party remarries.

Spousal support is treated as taxable income to the receiving spouse on his or her state tax return (but not his or her federal tax return) and may be deducted from income (for income tax purposes) by the paying spouse. on his or her state tax return (but not his or her federal tax return).

Spousal Support, Practically Speaking

The notion that spousal support will allow each spouse to enjoy the standard of living he or she experienced while married is misplaced. Simply put, providing for two households is more expensive than providing for one. Instead of a single rent or mortgage payment, you may end up with two. You may lose the economy of scale associated with feeding more than one person. If you enjoyed health coverage through your spouse’s employer, another policy will have to be purchased. Family-rate memberships will have to be terminated and restructured as individual memberships. If you have children and your spouse gets the practical car, leaving you with the two-seater, you may need to buy a new kid-friendly car.

All told, your standard of living is likely to decrease at least slightly when you divorce. There are a few exceptions to this rule. Strangely enough, the IRS does incentivize divorce when one spouse brings home nearly all of the household income by offering the couple an enormous tax break—the deductibility of spousal support. In situations involving the division of one spouse’s income between two individuals through spousal support, the cost of maintaining two households is mitigated. Likewise, if one spouse moves to a much cheaper part of the state, that spouse may be able to enjoy a higher standard of living on less income. In most cases, though, it is naïve to think that both spouses can enjoy a standard of living similar to that which they enjoyed while married.

Generally speaking, the goal of spousal support is to grant the lower-income spouse enough time to become self-sufficient. This doesn’t mean that the lower-income spouse must succeed in attaining the same salary as the higher-earning spouse. Instead, spousal support merely offers the lower income spouse the opportunity to lay the foundation for a life that is comfortable and sustainable. This might entail earning a degree, obtaining a certification, or simply learning a new trade.

In marriages of extremely long duration involving one spouse who hasn’t worked for years, lifetime support is sometimes awarded. This is simply because one spouse has been a homemaker for so long that expecting that spouse to go out and find a job is unreasonable. In most cases, however, spousal support will only continue for a period of months or years.

Every marriage is different, every family has unique needs, and no single formula will magically generate the ideal spousal support figure. Unlike child support calculations, which are almost entirely mechanical, arriving at a fair spousal support arrangement is a very subjective process. What works for one couple may not work for another. The following examples are not meant to represent what the parties might have received from a judge, but rather are meant to demonstrate how different couples might settle on a fair spousal support arrangement outside of court.

The Lees (Six-Year Marriage, No Children, Low Conflict)

Sandy Lee is a successful sales representative at a high-tech company in Silicon Valley. She is 33 years old, makes approximately $200,000 per year, and will likely move into a management position in the next year or two. Peter Lee is a 33-year-old high school science teacher who makes approximately $60,000 per year. The Lees have been married for six years.

Peter realizes that upon divorce he won’t be able to sustain anything approaching the same standard of living he enjoyed while married. He also knows that a judge might offer him three years of spousal support. However, Peter’s career is stable, his salary will increase gradually until retirement, and he doesn’t want to feel like a burden to Sandy.

Likewise, Sandy wants Peter to do well but isn’t thrilled about the prospect of paying him spousal support for three years. She does know, however, that Peter has always wanted to earn a master’s degree to boost his salary, and several part-time programs exist which would allow Peter to earn his degree while continuing to work and accrue seniority at his job. All told, the cost of obtaining a master’s degree would be approximately $20,000.

When Sandy offers to pay Peter $10,000 a year for two years to cover the expense of tuition, Peter readily accepts. The net effect of Peter’s degree will be a modest increase in his standard of living. Most importantly, both Peter and Sandy are very satisfied with the compromise, and they are able to part ways as friends.

The Andersons (Nine-Year Marriage, One Child, High Conflict)

Craig and Samantha Anderson have been married for nine years. They have one child together, and Samantha has full custody of another child from a previous marriage. Craig is a 38-year-old mechanic who makes $60,000 per year, and Samantha is a 36-year-old receptionist who makes $30,000 per year. Craig and Samantha are getting divorced because of repeated infidelity, and they are having a hard time working together to settle their divorce.

Samantha is adamant about obtaining as much spousal support from her soon-to-be ex as possible, while Craig is equally adamant about not supporting Samantha any longer than necessary. Despite constant redirecting and focusing by their mediator, Craig and Samantha won’t break free from their entrenched conflict. It appears that Samantha simply wants Craig to suffer, and Craig’s response to this attitude is equally abrasive. He understands the concept of child support, but simply will not tolerate the idea of paying Samantha spousal support.

As is often the case in high conflict situations, a reality check is in order. The mediator reminds them that they can let a judge set spousal support after hiring two attorneys and suffering through numerous failed settlement attempts. This will ultimately cost them all of their savings and will likely result in substantial debt for both parties. Both Craig and Samantha acknowledge that this isn’t what they want.

To help arrive at a fair settlement, Samantha and Craig both want to know what a judge might decide. The mediator stresses that unlike child support, spousal support is highly variable. Two different judges could easily grant very different awards of support. Yet while the amount of support varies, in California the duration of spousal support is typically half the length of a marriage of short duration. Because Samantha and Craig have been married 9 years, their marriage would most likely be considered one of short duration, and spousal support of 4.5 years would be a reasonable result. Samantha and Craig agree that fighting over the length of support is therefore a waste of time and money, and they agree on 4.5 years of spousal support.

Craig and Samantha begin to soften, and the mediator diligently tries to get them to focus on their respective needs. It becomes clear that underneath her anger, Samantha is frightened about the future, and she doesn’t believe that child support combined with her salary will be enough to pay the bills. She also hopes to make the transition from receptionist to legal secretary, a career move that will increase her salary. Craig begins to realize that Samantha isn’t simply trying to take him to the cleaners. She is genuinely concerned about making ends meet, and she has a plan to increase her earning capacity.

At last, Craig and Samantha begin a genuine dialogue about Samantha’s true income requirements. They turn back to their respective expense declarations and run through the numbers. Craig acknowledges that in addition to paying child support (Samantha will have primary custody), he can afford to give Samantha $8,000 a year in spousal support without drastically altering his own standard of living. Samantha agrees to this figure, acknowledging that 4.5 years of support will help her “bridge the gap” to her next (ostensibly more lucrative) position.

Disaster seemed imminent at the outset of Craig and Samantha’s mediation, but ultimately the couple realizes that a protracted fight only harms them both. In the end, they reach a settlement that works for both of them.

The Gersons (Twenty-Year Marriage, Two Children, Low Conflict)

Paul and Nadine Gerson have been married for twenty years and have two teenage children. Paul is a 45-year-old executive who makes $210,000 per year plus a significant yearly bonus (an average of $50,000), and Nadine is a 44-year-old stay-at-home mother. In addition to raising the children, Nadine handles the family finances and has a very good grasp of the family’s assets and income.

Prior to the birth of their first child 17 years ago, Nadine worked as a flight attendant. Since then Nadine has developed a bad knee, and spending her days walking through airports or up and down the aisles of an aircraft doesn’t seem like a realistic option. If she returns to work, it will have to be in an entirely new field. She previously earned an associate’s degree, and would very much like to obtain a bachelor’s degree.

John is resigned to the notion that Nadine will require significant spousal support. Their youngest child is 15 years old, and John and Nadine both agree that Nadine shouldn’t be expected to find employment until he enters college. In the meantime, Nadine will work on attaining her bachelor’s degree.

Nadine’s primary concern is her standard of living after the children leave for college. She knows that the combination of child support and alimony while the kids are around will be enough to pay the bills. However, she wants to remain in the family home after the kids are gone and pay off the mortgage (ten years of payments remain). She is rightfully skeptical of her ability to pay off the mortgage based on her income alone once she obtains a job.

Paul is sympathetic to Nadine’s concerns. The thought of lifetime support makes him queasy, but he is perfectly willing to support her for a period of years. After discussing the duration of spousal support at length, Nadine and Paul both feel that ten years of support payments is reasonable. The spousal support will allow Nadine to finish her degree, get the kids off to college, find a job, and pay off the mortgage on the home. Paul will be free and clear of both child support payments and spousal support in ten years, and that gives him comfort.

Deciding on the appropriate amount of spousal support is a bit trickier, but thanks to Nadine’s knowledge of the family finances and Paul’s accounting acumen, they are able to pinpoint exactly how much each of them needs to maintain a reasonable lifestyle. In the end, Paul agrees to pay the following as spousal support: (a) $80,000 per year for ten years and (b) half of his yearly bonus for the next five years.

The Legal Framework for Spousal Support

The parties to a divorce are free to agree on any amount and duration of spousal support, and spouses who are willing to acknowledge each others’ needs will succeed in reaching a workable compromise. Reaching a fair settlement is often aided by a general understanding of how a judge in California might approach the topic of spousal support. Unlike child support, which is almost always set by a fairly simple set of calculations, spousal support is subject to much greater discretion by the judge.

Amount

Spousal support that is paid between the date of separation and the date of divorce is called “temporary spousal support.” As a rule, it is almost always higher than permanent spousal support. This is because temporary spousal support is simply calculated based on income, while permanent spousal support is calculated based upon a far broader array of criteria. Indeed, a judge will typically rely solely on a local schedule to come up with the temporary spousal support figure. Truthfully, this might be the only reasonable choice given the short amount of time a judge has to come to a decision—often a hearing of 20 to 30 minutes.

When it comes to determining the amount of permanent spousal support, a judge is not permitted to rely solely upon a schedule. To do so would be considered reversible error. Instead, a judge must consider a wide range of factors, including the income of each spouse, living expenses, the standard of living enjoyed by the couple during the marriage, the future earning capacity of each spouse, and the degree to which one spouse has contributed to the education, licensing, or training of the other. All of the factors are set forth in Section 4320 of the California Family Code (Exhibit D in the Appendix).

Notably, California courts are not permitted to consider the income provided by a new partner when calculating spousal support. This does not mean, however, that a higher earning spouse who happens to meet a wealthy new partner can stop working and therefore stop paying spousal support. While the higher earning spouse may no longer need to work to support his or her standard of living, a judge can impute income based upon the earning capacity of that spouse. In other words, a higher earning spouse’s refusal to work based upon changed circumstances typically won’t change the need to pay spousal support.

While linking up with a wealthier partner and declining to work won’t save a paying spouse from the obligation to make support payments, a spouse who receives support should note the effect cohabiting with a new partner can have on spousal support. In California, the law presumes that when a party receiving spousal support moves in with someone of the opposite sex, his or her need for spousal support decreases. This notion is not based upon the income of the new roommate, but rather on the simple fact that sharing living expenses with another person reduces the monthly income required to sustain the same standard of living. The statutory authority for the co-habitation rule is found in Section 4320 of the California Family Code (Exhibit D in the Appendix).

Duration

When it comes to fixing the duration of spousal support, a judge has three basic alternatives:

Indefinite – This award of spousal support can’t be modified unless a change of circumstances is established. It’s up to the parties to seek a modification or termination. This is most commonly awarded when the parties have been married a long time (more than 10 years).

Fixed Period – This award specifies a set period of months or years for spousal support. Upon the expiration of the term, spousal support is terminated.

Conditional Termination (aka, a Richmond order) – This award terminates on a specified date unless prior to that time the recipient successfully petitions a judge to extend support. Typically a successful petition must demonstrate that certain assumptions made by the first judge never materialized (and the failure of these assumptions to materialize was not the recipient’s fault). This type of award is often called a Richmond order, based on the name of the underlying case that established the concept: Marriage of Richmond.

The length of a marriage is by far the most important factor a judge will use when determining the duration of spousal support. In California, a marriage of over 10 years is considered a marriage of “long duration.” A marriage of long duration requires either an indefinite or conditional termination award of spousal support. In special circumstances, a judge can find that a marriage of less than 10 years is a marriage of long duration as well, but this is not common.

A marriage of less than 10 years is typically known as a marriage of “short duration.” A marriage of short duration requires either a fixed period award of spousal support or a conditional termination award. Prior to 1989, a judge was permitted to make an indefinite award of spousal support in a short-term marriage, but thanks to several cases, this is no longer true.

The standard period of spousal support in a marriage of short duration is one-half the length of the marriage. In other words, if the spouses were married six years, spousal support would continue for three years. The California Legislature has decreed that this is a “reasonable” amount of time for a spouse to become self-sufficient.

Effect of Loss of Employment or Reduction in Salary

First of all, as noted above, a spouse who is obligated to pay spousal support cannot reduce or eliminate support by voluntarily quitting work. A judge can react by simply imputing income to the out-of-work spouse. However, if the paying spouse is legitimately fired and is unable to find employment for many months, a judge may reduce spousal support accordingly. Likewise, if the paying spouse receives an involuntary reduction in pay, he or she can petition the court for a reduced support order.

If a paying spouse voluntarily takes a new job that involves a reduction in pay, a judge is free to impute income at the previous salary without finding that the paying spouse acted in bad faith. In one key case, a pharmacist walked away from his job to attend medical school. Even though the Court of Appeals found that his action was a good-faith attempt to increase his earning capacity, the court held that it was permissible to impute income at his prior salary for spousal support purposes. The Supreme Court of California upheld this line of reasoning. To summarize, a paying spouse who voluntarily reduces his or her income may find that a judge simply imputes income to him or her at the level previously earned.

Increasing Spousal Support

Unlike child support, an increase in the paying spouse’s overall earned income doesn’t necessarily merit an increase in spousal support. This intuitively makes sense, as the goal of spousal support is to allow the receiving spouse to enjoy a standard of living similar to that enjoyed during the marriage. However, if the receiving spouse suffers a reduction in income or an increase in expenses and the court still has jurisdiction over the matter, it may be appropriate for a judge to increase spousal support. Of course, the party seeking modification must show a change in circumstances warranting such an increase.