Husbands and wives owe each other a mutual duty of support so long as they are living together. This obligation is imposed by law as part of their marital vows. When the parties separate and are not living together, neither spouse owes the other a duty of support unless they have an agreement stipulating to continued support.

"Temporary" Spousal Support

Upon the parties separation and the filing of a dissolution or legal separation proceeding, the court may order one party to pay any amount that is necessary for the other party's support consistent with the requirements of the California Family Code. The award of spousal support (also referred to as alimony or maintenance) is entirely within the court's discretion. The courts generally look to the lifestyle the parties enjoyed during marriage as the benchmark for a temporary spousal support award. The purpose of temporary spousal is to maintain the parties' living conditions and standards in as close to their pre-separation position as possible pending final settlement or trial and a division of their assets and obligations.

Despite the "status quo" purpose of temporary spousal support orders, the courts generally recognize that, as a practical matter, it costs more to maintain two households than one. Therefore, even when the circumstances warrant a temporary spousal support order, the person receiving the support should not be misled into thinking the award must or will be sufficient to keep him or her maintained in accordance with the pre-separation marital lifestyle, even on a temporary basis. The truth is that often, both parties may have to make downward adjustments in their standard of living. Moreover, a temporary spousal support award is no indication of the amount that may be awarded as "permanent" support after final settlement or trial.

"Permanent" Spousal Support

What is typically referred to as "permanent" spousal support, is intended to provide financial assistance, after the judgment of dissolution is entered and the parties' debts and assets have been divided. The amount of support may be decided by the agreement of the parties. When the parties cannot agree, it is then decided by the court.

Factors the Court considers in ordering Spousal Support

While the court has a great amount of discretion in determining permanent spousal support, the court is required by law, to consider certain factors in each case. Those factors are set forth under in the California Family Code and the court must consider all of the following circumstances:

• The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage.
• 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.
• 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.
• The needs of each party based on the standard of living established during the marriage.
• The obligations and assets, including the separate property, of each party.
• The duration of the marriage.
• 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.
• The age and health of the parties.
• Documented evidence of any history of domestic violence...and consideration of any history of violence against the supporting party by the supported party.
• The immediate and specific tax consequences to each party.
• The balance of the hardships to each party.
• The goal that the supported party shall be self-supporting within a reasonable, period of time. Except in the case of a marriage of long duration (10 years or more), a "reasonable period of time" generally shall be one-half the length of the marriage.
• The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with law.
• Any other factors the court determines are just and equitable.

Actual Earnings vs. Ability to Earn

Upon making orders for spousal support, the court may not only look to what a spouse is actually earning, but also what a spouse has the ability to earn. The court may do this when it becomes apparent to the court, based upon competent evidence, that a person is not working or is intentionally under employed. The court will in essence charge the underemployed spouse with a sum equal to what the court determines is his or her earning capacity once it is established by reliable evidence. This is called "imputed" income. The court must find that the spouse has both the ability and opportunity to earn the imputed income amount.

Where the parties have been married a long time and the supported spouse has been unemployed (or underemployed) for a substantial period and they have recently separated, or the supported spouse has been the primary caretaker parent and long-removed from the full-time workforce, the court is less likely to impute income to the under employed spouse for the purpose of temporary spousal support. The court is more likely to take the supported spouse's earning capacity into account when making a permanent spousal support order.

When Spousal Support Ends

Generally, unless the final judgment provides otherwise, support terminates upon the death of either spouse or the re-marriage of the supported spouse. The support ordered in the Judgment may be modified if a special hearing, called an "Order to Show Cause" is warranted unless the Judgment specifically provides for no modifications.

The foregoing information is offered to help inform you, however it is not intended as a substitute for professional legal help. See Disclaimer. Only a licensed lawyer can provide such help. Contact us online or call 949-855-0600 to set an appointment.