Q. What rights do I have to permanent spousal support? I live in Palm Desert, CA.
A. Permanent spousal support is not usually "permanent," although
it can be in cases of very long marriages where the respective financial
circumstances of the parties justify it. Lawyers and judges also refer
to it as "post-judgment spousal support", "alimony",
"judgment spousal support", or "long term support".
temporary spousal support, long term spousal support is only issued after a final judgment of Dissolution
of Marriage or Legal Separation. It is equally available to domestic partners.
Also unlike temporary support, it is not based on any computer formula
or state or county guideline, but must be determined and fixed depending
on the facts of every individual case. If long term support is important
to your future wellbeing, you may need an experienced support attorney
- even if the support numbers are presently a matter of agreement between
you and your (former) spouse.
There are several very important rules to keep in mind. First, a marriage
in California which lasts more than 10 years (defined as the time between
date of marriage and
(physical separation), is "long term" marriage. The general rule is that in marriages
which are not long term, spousal support should not be payable for more
than one-half the length of marriage - or to put in differently, the law
presumes that the recipient spouse should be rehabilitated and so become
self-supporting in a period equal to 1/2 the marriage. However, this presumption
becomes less important in cases involving older couples, especially where
people can not be realistically expected to re-enter the work force, in
cases where there children who remain minors, or where the party asking
for support has a debilitating disease or disability.
There is no magic ratio for how long a former spouse might be ordered to
pay support. Each case depends upon its own facts, the quality of your
attorney, and the attitudes of the family court judge. Even in cases of
long term marriages, the support obligation typically will end at some
point in time. However, if usually will not end on its own - meaning that
when a trial court orders long term support it will reserve jurisdiction
to continue to extent it until some time downstream when a party petitions
the court to terminate support and a judge finally says "enough is
Imputed income is often an important argument in long term support marriages,
where one party convinces the court that the other party is shirking or
failing to genuinely try to become self-supporting. It is sometimes necessary
to have the supported spouse evaluated by a vocational rehabilitation expert.
There are four components to an award of of permanent support: 1) Amount;
2) duration; 3) substantive increases or decreases over time; and 4) jurisdictional
step downs (Richmond Orders), and ultimately a termination date.
Family Code section 4320 is the critical California spousal support statute. Essentially it sets
forth all the factors that the court must consider in setting post-judgment
support, and you will see that it is not an exhaustive list and the court
can consider anything else it deems important to the decision. Support
factors include the extent to which the earning capacity of each party
is sufficient to maintain the marital standard of living established during
the marriage, considering: a) the marketable skills of the supported party,
the job market for those skills, the time and expense required to train
that party including education and b) the extent to which the supported
party's present or future income earning ability is impaired by periods
of unemployment or were incurred during the marriage to permit that party
to devote time to domestic duties.
- Another factor is whether the supported party contributed to the attainment
of an education, training, license, career, or position by the supporting party.
- Another factor is the ability of the supporting party to pay, taking in
account that person's earning capacity, income, and assets and standard
- Another very important support consideration is the needs of each party
- including both parties.
- Another factor is the obligations and assets of each spouse, including
the separate property which each has or gained upon the dissolution.
- Another is the ability of the supported spouse to engage in gainful employment
without interfering with the needs of dependent children in their custody.
- The age and health of the parties is critical in some cases. 65 years of
age is the presumed retirement age for adults today, and courts cannot
order a person to continue to be employed beyond that age - but, if they
make that choice, their income can be considered.
- A documented history of domestic violence can affect the right to receive
support or the obligation to pay it.
- The tax consequences between the parties must be considered.
- And, basically, as I said, any other specific facts that trend one way
The three most common factors are the marital standard of living (MSOL),
need and ability to pay, and the assets the parties end up with upon divorcing.
Courts cannot order lump sums for support. Spousal support is generally
taxable to the recipient and deductible to the payor, but there are very
specific IRS requirements that must be met for this to actually be so.
Courts are required to state their findings on each relevant issue in writing.
In practice though, most people settle their divorce cases by way of settlement
agreements. Unfortunately, lawyers often leave out these findings so that
when a court is asked, down the road, by the payor to terminate or decrease
support, or by the payee to increase it, there is no map for the court
to use to base its modification findings on.
If support is an issue for you either way, please hire a competent lawyer!
Author: Thurman Arnold