Disputes over spousal support (i.e. alimony) are some of the most contentious and difficult to resolve in a dissolution. Payors rarely want to pay any more support required for any period of time longer than they have to. Conversely, support recipients rarely believe they're receiving enough. It is this fundamental mismatch in needs and desires that make spousal support one of the most difficult on which to reach a resolution. At Murphy Family Law, we encourage parties to settle and compromise on spousal support issues to avoid court because court issued spousal support orders are extremely hard to predict.
While spousal support is not mandatory California, if one spouse earns significantly more than the other, a court may order that spouse to pay spousal support to the lower-earning spouse either on a temporary or more permanent basis. There are two types of spousal support in California. Temporary support is paid while the dissolution case is pending. The second type of support is post judgment (sometimes referred to as permanent support), which is paid after the entry of judgment. Temporary spousal support is intended to help both parties maintain the status quo of the marriage while the dissolution is pending. Post judgment support is intended to help maintain the lesser earning support at the marital standard of living while he or she works toward becoming self-supporting.
Because of the complexities inherent in determining spousal support, we encourage you to consult with an experienced family law attorney to discuss your individual circumstances.
How is temporary support calculated?
Temporary spousal support is often calculated using the same types of programs used to calculate child support (e.g. DissoMaster, XSpouse), at least to start; however, this “guideline” amount is subject to many exceptions and modifications based upon various factors. Under California Law, a Court can order any amount of support necessary to maintain the payee subject to the payor's ability to pay, and the recipient's need.
A court can adjust temporary spousal support up or down from a calculated amount by taking into account expenses paid by the payor (including college expenses paid on behalf of a dependent student and community debts/bills), documented domestic violence and abuse, whether either spouse is receiving gifts or financial assistance from third parties, whether one spouse stayed home during the marriage with children, whether child support is being paid, whether there are exceptional circumstances such as other children, payment of support to prior spouses, tax implications and tax filing status, whether one party is exempt form paying social security taxes (such as teachers or railroad workers), and a myriad of other factors a calculator simply cannot take into consideration. These factors are codified in Family Code section 4320.
We encourage you to be very careful using any online alimony calculator that you may find on a website. Such calculators are notoriously unreliable, given the myriad of factors that a court can use to deviate from guideline and give a false sense of assurance in what you may be ordered to pay or receive. Spousal support is sufficiently complex in analysis that you should always consult with a knowledgeable family law attorney for advice.
How is post judgment support calculated?
Courts are prohibited from using support calculators to compute post judgment spousal support. Instead, a court must evaluate the factors set forth in Family Code 4320, which include but are not limited to an evaluation of each party's earning capacity, education, training, age, health conditions, assets, debts, history of domestic violence, tax factors, and other relevant factors. One of the factors that the court evaluates is the marital standard of living. While the marital standard of living will typically set the upper limit of possible support, the court has a lot of discretion in setting the duration and amount of support. It is this extensive discretion that makes litigating post judgment spousal support very risky for both parties.
How long does spousal support last?
Again, this question is difficult to answer because it is entirely dependent on a number of factors and is not something that be determined on the basis of some formula. However, there are some guiding principles courts use. For a marriage of short duration, typically defined as a marriage lasting less than 10 years, there is a presumption that support should not last longer than half the length of the marriage. Of course, with all things in family law, there are exceptions to this rule, and you should consult with an experienced family law attorney to discuss your individual circumstances.
For marriages with a duration longer than 10 years' length, spousal support can be ordered without a specific end date or duration, and a court must reserve jurisdiction over the issue of support indefinitely, unless the parties otherwise so stipulate otherwise, so long as the payee has not remarried or both parties remain alive. Regardless, support cannot extend beyond the remarriage of the payee (without an agreement of the parties), nor can it last beyond the death of the payor or the payee.
Is there an average amount of spousal support that I can be expected to pay?
There is no average amount of spousal support generally ordered. However, a popular formula used to determine support is by taking 35% to 45% of the high income earner's gross salary and subtract 40% to 50% of the lower-income earner's gross salary. These are only rough estimates, and the actual amount of spousal support will vary depending on your circumstances. Sometimes a better method of deriving a support amount is do any analysis of the payee's needs and goals, and the payor's ability to pay, taking into consideration the obligations and debts of both parties.
What is a "Richmond Order?" What is a "Gavron Warning?"
A Richmond Order is a spousal support step down order that derives from the appellate case Marriage of Richmond (1980). IRMO Richmond holds that a court has the authority to put in place step down of spousal support payable to the supported spouse on a date certain unless prior to that date, the supported spouse is able to show good cause to the court why the support should not be reduced or terminated. Essentially, a Richmond Order is an order terminating spousal support jurisdiction in a long term marriage unless the supported spouse can provide a sufficient justification as to why s/he should continue to receive support. In order to obtain a Richmond Order, the supported spouse must have been issued a "Gavron Warning" at some point prior to the issuance of the Richmond Order. A Gavron Warning is an order that states “each party shall make reasonable good faith efforts to become self-supporting.” The intent of the warning is to put the supported spouse on notice that there is an expectation that they will work towards becoming self-sufficient. Once he or she is on notice, if the supported spouse fails to make satisfactory efforts to become self supporting, the court can issue a Richmond Order to start the process of stepping down the payment of spousal support.
What if I am retired? Do I still have to pay spousal support?
Spouses who have reached the age of retirement (generally 65, or earlier if the payor worked in an field where early retirement is standard, such as law enforcement) are not required to continue working in order to pay spousal support. However, spousal support can still be ordered on the basis of the payor's retirement benefit income. Further, if a payor retires, and his or her income is reduced, the retired payor may be able to file a motion with the court to modify his or her support downward.
What other considerations should I be aware of?
There are many other considerations in the calculation of the amount and duration of spousal support, including factors related to variable income, considerations if one spouse owns and operates a business, circumstances under which support can be reduced or terminated, the availability of seeking vocational evaluations to determine earning capacity, the influence of the division of the marital estate and separate property assets, amongst other factors. In order to truly understand the implications of your individual circumstances, you should contact Murphy Family Law for a consultation to discuss your spousal support issues today.