HOW IS SPOUSAL SUPPORT DETERMINED?
by Lacey Sanchez, Lerandeau & Lerandeau, Fresno Divorce Lawyers
A court may order one spouse to help the other meet his or her monthly expenses when they separate. This is called spousal support, aka “alimony.” In order for spousal support to officially start, there must be either a court order or a written separation agreement between the spouses. A spouse can ask the judge to make a spousal support order as part of any one of the following types of cases: 1) Divorce, 2) Legal separation, 3) Annulment; 4) Domestic Partnership, or 4) Domestic violence. Establishing the correct amount of spousal support is very nuanced and you should seek the advice of at least one of the Fresno divorce lawyers before reaching any agreement with your spouse.
Spousal support can be paid while the case is ongoing. This is called temporary support. For temporary support, judges in many local courts use a computerized formula to calculate the amount. Support can also be ordered once the divorce becomes final. This is called permanent (or long-term) support. The judge will not use a formula to determine this amount. Instead, the judge will consider certain factors that include:
●The length of the marriage;
●What each spouse’s needs are based upon the standard of living during the marriage;
●What each spouse could pay (including earnings or earning capacity) to help keep them at the standard of living they had during the marriage;
●Whether having a job would make it too hard for the primary caregiver to take care of the parties’ children;
●The age and health of each spouse;
●Each party’s debts and property;
●Whether one spouse helped the other get an education, training, career, or professional license during marriage;
●Whether there was domestic violence during the marriage;
●Whether one spouse’s career was affected by taking care of the children; and
●The tax impact of spousal support.
A judge must consider what each spouse can earn. To do this, the judge must look at the following:
●Marketable skills of the spouse requesting support;
●Job market for those skills;
●Time and expense the spouse who gets support will need to get the education or training to develop more marketable skills or get a job;
●Extent that the earning capacity (the ability to earn income) of the spouse who gets support was impaired by periods of unemployment during the marriage when he or she was devoted to domestic duties; and
●The duration of a permanent or long-term spousal order is closely related to the length of the marriage. The goal of spousal support is to provide the spouse receiving support a reasonable period of time to become self-supporting. In general, a reasonable period of time is one-half the length of the marriage. However, the judge has discretion (power) to make a different decision given the specific circumstances of the case.
When a marriage is considered a long-term marriage (usually 10 years or more), the judge may not set an end date for support. The length of the marriage is generally from the date of the marriage to the date of separation. Because the date of separation can have very important consequences when it comes to deciding spousal support, the parties may not be able to agree on a date of separation, and the judge may have to make that decision.
When determining the amount of spousal support, the judge must take into account documented evidence of any history of domestic violence between the parties. When the spouse that would have to pay the support is the one who had been abused, the judge will consider any emotional distress the victim may suffer by having to pay his or her abuser support. There is a rebuttable presumption against giving spousal support to an abusive spouse who has a criminal conviction for domestic violence against the other spouse.