Law Office of
Daniel Portillo

Divorce/Family Law Attorney for
Contra Costa, Alameda & Solano Counties

Spousal Support

Spousal support, also known as alimony, occurs when the higher earning spouse is ordered to pay a regular payment (usually on a monthly basis) to the lower earning spouse. The Court has the power to award spousal support when there is a divorce or legal separation. There are two types of spousal support: temporary and permanent. The Court uses a different procedure to address these two kinds of spousal support.

Temporary Spousal Support:

Temporary spousal support occurs when the Court orders one party to pay the other party spousal support while a divorce or legal separation is pending (i.e., before the Judgment of Dissolution of Marriage or Legal Separation is entered). In order to receive temporary spousal support a party must make a request for an award of temporary spousal support to the Court by filing the proper motion or Request for Order.

The purpose of temporary spousal support is to attempt to preserve the status quo (i.e., allow both parties to maintain the same standard of living established during marriage). In the vast majority of cases, the Court determines the amount of temporary spousal support by using an accepted computer program such as Dissomaster or Xspouse. These programs calculate temporary spousal support based on such factors as respective income of the parties, tax filing status, tax exemptions, and certain tax and other type of deductions. In addition, if temporary child support is also being awarded in a case, the amount of the child support award affects the amount of temporary spousal support.

Permanent Spousal Support:

Permanent spousal support is decided as part of the Judgment of Dissolution of Marriage or Legal Separation. Permanent spousal support is an inaccurate term since: a) this type of spousal support rarely lasts for the duration of a spouse's life; and b) unless the parties have agreed otherwise in their Judgment of Dissolution or Legal Separation, this type of spousal support is modifiable. This is why permanent spousal support is also referred to as long term spousal support.

Unlike temporary spousal support, the Court cannot decide the amount of permanent spousal support based on a computer program. Rather the court must analyze and weigh a number of factors to decide permanent spousal support. These factors are mainly found in Family Code section 4320. These factors include:

  1. The extent to which each party's earning capacity (or ability to earn income) will allow that party to maintain the standard of living established during the marriage.
  2. The extent to which the supported party (i.e., spousal support payee) contributed to the attainment of an education, training, a career position, or a license by the supporting party (I.e, spousal support payor).
  3. The supporting party's ability to pay, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living.
  4. The needs of each party based on the standard of living established during the marriage.
  5. The assets and debts of each party (including the separate property of each party).
  6. The duration of the marriage.
  7. The ability of the supported party to be gainfully employed without unduly interfering with the interests of dependent children in the supported party's custody.
  8. The age and health of each party.
  9. Documented evidence of any history of domestic violence between the parties, or domestic violence committed by either party against either party's child, including emotional distress resulting from the violence.
  10. The immediate and specific tax consequences to each party.
  11. The balance of hardships to each party.
  12. The goal that the supported party be self-supporting within a reasonable period of time.
  13. The criminal conviction of an abusive spouse the Court is considering the reduction of elimination of a spousal support award under Family Code Section 4324.5 or 4325.
  14. Any other factors the court deems just and equitable.

Duration of Spousal Support:

Generally, marriages lasting less than ten years are considered short term marriages. The general rule of thumb is that for short term marriages an award of spousal support should last for no more than one-half of the length of the marriage. The length of marriage is defined as being the time between the date of marriage and the date of separation. To illustrate, for a marriage lasting six years, an award of permanent spousal support would probably last three years. The word "probably" is used in the illustration because there is no law that commands a court to terminate spousal support after half the length of a short term marriage. Furthermore, under Family Code section 4336 the Court has the power to decide a marriage of less then ten years should be considered a long term marriage (a rare occurrence, but an actual possibility).

Long term marriages are usually found to be marriages lasting over ten years. There is no rule of thumb regarding how long permanent spousal support should last. In fact, the Court can indefinitely retain its power to award permanent spousal support in a long term marriage. Generally, in long term marriages if the Court sets a date of termination for spousal support in it original award of permanent spousal support such date is based on the Court's belief that the supported spouse will be able to become self supporting by the date set for termination of spousal support.

Modification or Termination of a Permanent Spousal Support Award:

Unless the parties to a divorce have agreed otherwise in their Judgment of Dissolution or Legal Separation, the Court retains it power to modify or terminate permanent spousal support. The party seeking such modification or termination of permanent spousal support must make the proper request for modification or termination of spousal support to the Court. In ruling on a request to modify or terminate spousal support the Court must re-analyze and re-weigh the factors set out in Family Code section 4320 as they now exist. In considering these factors the Court must determine whether a significant change of circumstances has occurred since the time the pervious spousal support award was made that would justify the modification or termination of the spousal support award.

Circumstance which may justify the modification or termination of spousal support include: a) the failure of the supported spousal to take reasonable actions to become self-supporting; b) the supporting spouse experiencing a significant reduction of income; and c) the supported spouse cohabiting with another individual.

Settlement of Spousal Support by Agreement:

The parties to a divorce or legal separation are free to negotiate the spousal support terms that are different that what the law compels a Court to order if it were decide the spousal support issue at a trial. For example, the parties could agree that one party will pay the other a set amount of spousal support for a set period of time. The parties could further agree that the Court would have no power to modify either the amount of spousal support or the duration for which spousal support is being paid.

These terms are something a Court could not order at trial but are terms the Court can adopt as part of a Judgment or Dissolution or Legal Separation because these terms were agreed upon by the parties.

Consultation with An Experienced Family Law Attorney:

The issues which might arise in considering and resolving spousal support are far too numerous and complex to adequately discuss here. Consultation with an experienced family law attorney is needed to help ensure that your rights and interests regarding spousal support are being protected. Attorney Daniel Portillo has over 25 years experience resolving spousal support and all divorce related matters. Contact Mr. Portillo to discuss spousal support and all other issues involved in your divorce.