Spousal support, sometimes referred to as “alimony” is the money one spouse pays to another spouse for their maintenance and support.
There are two types of spousal support—temporary spousal support and permanent spouse support. The terms, in reality, refer to the period of time that the support is paid. Temporary support is paid during the pendency of the divorce and ends when the divorce is finalized. Permanent support is considered long-term support, and is the amount paid after divorce. The term “permanent” is not to be taken in a literal sense as it serves to provide a distinction between the payments made during the pending divorce and after the divorce is finalized.Legal Basis for Temporary Support
Unlike child support, which is a mandatory requirement set forth by law, spousal support is discretionary. This means that if the person requesting spousal support from the other party proves to a court of law a need on the recipient’s part and ability to pay on the payor’s part, then there is a strong likelihood that the court will grant temporary spousal support to the requesting party. While some case law reflects that the goal of temporary spousal support is to enable the payee to live to his or her standard of living at time of marriage—the courts have interpreted case law to reflect that the courts should equitably allocate the family income, taking into the account the parties’ individual incomes and expenses in order to maintain the parties to as close to their pre-separation condition as possible, pending the final adjudication of the divorce.
Illustration: A black-and-white scenario looks like this: the couple married in their early 20s when husband was in medical school. The parties agreed that wife would work and support husband through medical school and thereafter when he became a licensed doctor, wife would become a stay-at-home mother. Fast forward 30 years, the parties are now in their mid-fifties. Husband one day ups and moves out of the home, leaving the wife behind with their two minor children. Going through a mid-life crisis, husband refuses to pay spousal support or the household expenses. To make matters worse, husband exclusively manages and controlled all the family finances; thus wife has no access to community-estate funds or financial records.
In this example, wife would have an excellent chance of having the court grant her temporary spousal support—because there is a showing of need on her part and an ability to pay by her husband.
In reality, it’s never this easy. In fact, this is a very complicated area of law due to the underlying issues and facts regarding the parties proving “need” and “ability to pay.” For example, husband could claim that wife does not need the money because she can work and, in fact, is refusing to find work—even though she is qualified in many fields; on wife’s part, she has difficulty determining husband’s actual income, especially if he is self-employed and/or gets paid in cash (under the table).Permanent Support
In awarding long-term spousal support, the court must base their decision on the standard of living established during the marital period. The marital standard of living is weighted against other factors in Family Code 4320. The “4320 factors” consider, for example, length of marriage, age of parties, levels of education, health (and disabilities) of the parties, and any other factors the court deems “just and equitable.”Duration of Support
The following are general rules of thumb and can be modified based on the unique facts of the case.
Short-Term Marriage of less than 10 years: If support is awarded, the courts will usually grant support for a period of up to half the life of the marriage. For instance, if the parties were married 4 years—half the life of the marriage is 2 years.
Long-Term Marriage of 10 or more years. If spousal support is awarded, the legal standard is different: death or remarriage of the supported spouse.
Why the difference? Answer: It would be easier for a 20-something individual, who didn’t work during the 2 year marriage to re-enter the workforce and procure gainful employment than a 50-something individual who has not only been out of the work-force for 30+ years, but also has numerous health issues.
For practical purposes, the courts are looking more to the specific facts of the case, rather than blindly relying on the general rules of thumb. Specifically, the courts, more and more, are issuing seek-work orders, requiring recipients to take aggressive steps to become self-reliant as soon as possible—taking into account all factors. Thus, if before marriage, wife was an architect and quit work to stay at home, even though the parties were married 12 years, the court will limit the duration of wife’s spousal support—giving wife just enough time to find a new job in the same or similar field. The court would not grant wife long-term spousal support till death or remarriage.How Can Ms. Garrett Help?
Ms. Garrett is available to help with the following:
- Assessing the strength and weaknesses of your spousal support case—as payor or payee;
- Coaching you in connection with negotiating or filing a motion for spousal support—to include explaining required procedures, deadlines, and substantive law;
- Coaching you with preparation of your declaration, and supporting evidence;
- Coaching you with respect to preparing your Income & Expense Declaration;
- Coaching you in connection with calculating temporary spousal support and/or negotiating temporary and permanent spousal support;
- Coaching you in connection with preparing for your hearing;
- Answering your questions regarding spousal support;
- And much more.
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