About Permanent Spousal Support (AKA “Alimony”)
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There are many factors that the court takes into consideration when determining spousal support in California. Because there are many factors and a lot of discretion involved, spousal support is often a heated and highly litigated issue in divorce proceedings.
Below are nine factors that are used to determine spousal support in California.
Ability to Pay & Earning Capacity
When determining whether to award spousal support, the court will consider one party’s ability to pay together with the other party’s need for financial support. A party’s ability to pay spousal support includes more than just base salary.
The court should also consider bonuses, overtime, self-employment income, 401(k) deductions, pension plans, and income from the exercise of stock options, among other income streams. There is no specific formula to determine ability to pay, which is why it is crucial to have an attorney to advocate on your behalf.
Need is based on what each spouse could earn to keep a standard of living close to what it was during the marriage. To determine a party’s need for financial support, the court will look to more than their current income. It will also look to their earning capacity—what the person could potentially earn. Earning capacity is based on several factors, including:
- Marketable skills,
- The job market for those skills,
- Time and expense the spouse will need to get the education or training to develop more marketable skills or to get a job, and
- The extent that earning capacity was impaired due to unemployment because the spouse was devoted to domestic duties
Together with figuring out a spouse’s earning capacity, the court will consider whether having a job would make it too challenging to take care of the children. The court does not want the needs of the children to be sacrificed. The younger and more dependent the children, the more they will factor into the analysis.
Length of Marriage
Length of marriage one of the greatest factors when deciding the duration of the spousal support. Alimony is intended to continue a reasonable amount of time until the receiving party can become self-supporting. For short-term marriages, the court typically considers half the duration of your marriage to be a reasonable amount of time.
However, under California law, if you have been married ten years or more, the court has the discretion to order lifetime spousal support to the low-earning party. Lifetime support is not automatic, but the court can award it if the marriage is considered long-term. Additionally, there is California case law that says the court has the discretion to consider seven or eight years a long-term marriage. If you are in a rocky marriage and do not think your marriage will last, the seven-year mark is critical when you are the high-earner. At the seven-year point, you should seriously think whether or not you want to continue the marriage.
Assets and Liabilities
In addition to income, the court will look at each spouse’s assets and liabilities to understand their ability to pay and their need. It will look both at community and separate property to determine each spouse’s net worth.
Whether One Spouse Helped the Other Get an Education, Training, Career, or Professional License
The court will consider whether one spouse helped the other receive an education, training, or professional license. This situation often occurs where one spouse was the homemaker, while the other spouse went to school or obtained a license to increase his or her earnings. California law considers it unfair for the spouse who received the increased earnings and education not to give back to the spouse that made sacrifices.
When there is documented evidence of domestic violence in a relationship, the court must consider it and the emotional distress that resulted. Additionally, under California law, there is a rebuttable presumption against giving spousal support to a spouse who had a criminal conviction of domestic violence against the other spouse within five years before filing for divorce or anytime after.
Standard of Living Established During the Marriage
Spousal support is granted in part based on need. A spouse’s need is determined by whether or not they can maintain the same standard of living after the divorce. The standard of living must be reasonable, and the court may make adjustments.
Age and Health of the Parties
The court may increase spousal support if one of the spouses is in poor health or older. These factors may make it harder or impossible for them to be gainfully employed and, therefore, must be considered.
Tax Impact of Spousal Support
The court will also consider the tax impact of spousal support. The tax consequences can be complex. In certain situations, spousal support may be taxable or deductible in California.
Any Other Factors The Court Deems to Be Just and Equitable
The court can take into account anything that it considers relevant and necessary to determine a just and equitable spousal support award. This gives the court broad discretion.
Your San Jose Divorce Attorney
If you have questions about spousal support, you should contact the experienced attorneys at Moreno Family Law Firm. Because of all the factors involved in determining spousal support, there is a lot an experienced litigator could do to change the ultimate result. Call Moreno Family Law Firm today at 408-266-9011 for a consultation.