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".
Unlike 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 a enough."
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.
Second, 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 of living.
- 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 or another.
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