How is Permanent Spousal Support Calculated in California?
What is Permanent Spousal Support?
Permanent spousal support is spousal support that is awarded for a period of time after the entry of a Judgment for Dissolution. Temporary spousal support is awarded for either all of or a portion of the time after the Petition for Dissolution is filed and until a Judgment is entered. Despite its name, permanent spousal support is not necessarily indefinite. Unless there’s an agreement to the contrary, spousal support terminates upon the death or remarriage of the supported party or further order of the court.
How Permanent Spousal Support is Determined
When it comes to the calculation of permanent spousal support the court looks to the 14 factors of California Family Code Section 4320. These factors must be considered whenever there is a request to commence, modify, or terminate permanent spousal support.
1. The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
The goal of spousal support is to keep both parties at the standard of living that was enjoyed during marriage. This is not always possible since it’s significantly more expensive to maintain two households instead of one. If it’s not feasible for both parties to maintain the marital standard of living, the court will attempt to maintain a similar standard of living for both parties.
2. The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.
The court will consider whether one spouse contributed to the career or helped to increase the earning potential of the other spouse. For example, a spouse’s earning capacity may be less due to periods of unemployment if that spouse stayed home and took care of the children so the other could further their career.
3. The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.
The court must determine that the supporting spouse has the ability to pay support, but ability to pay support isn’t measured only by a party’s earnings. Imagine if a CEO of a successful company quit to work at a fast food restaurant in order to intentionally suppress his income and ability to pay support. The court could look to his earning capacity, assets, and standard of living to determine his ability to pay support.
4. The needs of each party based on the standard of living established during the marriage.
The court considers what each party needs to maintain the marital standard of living. This does not guarantee that either party will be at the same standard of living that the parties enjoyed during marriage, but the goal is to keep both parties as close to the marital standard of living as possible.
5. The obligations and assets, including the separate property, of each party.
The court takes into consideration the debt and assets of each party and how their respective assets and debts affects the supported party’s need for support and the supporting party’s ability to pay support. For example, if the supported party has a rental property that produces rental income this may reduce or eliminate the need for support.
6. The duration of the marriage.
An important factor in determining permanent spousal support is the length of the marriage. For short term marriages (typically marriages lasting 10 years or less) there is a presumption that spousal support should last one-half the length of the marriage. For example, if the parties were married for 6 years, one spouse can potentially receive spousal support for 3 years. For long term marriages (marriages lasting more than 10 years), there is a presumption that the court maintains jurisdiction over spousal support indefinitely. Both presumptions can be rebutted by various factors.
7. The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
The court must consider how it would affect the parties’ dependent child/children if the supported party were to be required to obtain employment. This factor only applies if the parties have minor or otherwise dependent children.
8. The age and health of the parties.
This is fairly self-explanatory but the court must consider how old the parties are and their respective health to determine spousal support. For example, if the supporting party is young and able to work and the supported party has medical conditions that interfere with their ability to work, the court would tend to award support to the party that is unable to work.
9. All documented evidence of any history of domestic violence, as defined in Section 6211, between the parties or perpetrated by either party against either party’s child.
It would go against public policy to require a victim of domestic violence to pay the perpetrator spousal support. Additionally, it grants the court more discretion when determining the amount that a perpetrator must pay the victim. A court can consider evidence of domestic violence even in the absence of a conviction or restraining order.
10. The immediate and specific tax consequences to each party.
The court will consider the tax implications a permanent spousal support order will have for both parties. Spousal support Orders and agreements made 01/01/2019 and after are federally non-taxable and non-deductible.
11. The balance of the hardships to each party.
The court looks at hardships of each party if it were to grant, deny, or modify support. What hardships would it create for the supporting party if they were ordered to pay support? What hardships would it create for the supported party if they were denied support?
12. The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a “reasonable period of time” for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.
The supported party is expected to become self-supporting within a reasonable period of time. The court will consider efforts or lack of effort by the supported party to obtain employment or otherwise work towards becoming self-supporting.
The court may issue a Gavron warning to the supported party that essentially puts them on notice that they need to make efforts to become self-supporting. If the supported party refuses to become self-supporting within a reasonable period of time after a Gavron warning is issued, spousal support may be reduced or terminated all together.
13. The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4324.5 or 4325.
California Family Code Section 4324.5 provides that if there is a criminal conviction for a domestic violence felony perpetrated by one spouse against the other spouse and the Petition for Dissolution is filed within 5 years of the conviction an award of spousal support from the convicted spouse from the injured spouse is prohibited.
California Family Code Section 4325 provides that if there is a criminal conviction for a domestic violence misdemeanor by one spouse against the other within the last 5 years, there is a rebuttable presumption that a spousal support award to the convicted spouse from the injured spouse is prohibited.
In short, a criminal conviction for a domestic violence misdemeanor creates a rebuttable presumption that a spousal support award payable from the perpetrator to the victim is prohibited while a conviction for a domestic violence felony prohibits an award of spousal support payable from the perpetrator to the victim.
14. Any other factors the court determines are just and equitable.
This is a catch-all that allows the court to consider other factors that may not be specified above.
Clearly there are many factors that are considered when determining the commencement, modification, or termination of permanent spousal support and it can be difficult to navigate without a knowledgeable attorney. If you have questions regarding your spousal support order or need assistance in obtaining, modifying, or terminating a spousal support order and live in Mendocino County, Sonoma County, or Lake County California, contact our experienced Santa Rosa family law attorneys today to schedule a confidential consultation.