A few thoughts on Spousal Support (aka Alimony)

I probably get more questions about spousal support than any other issue. So let's get a few things out of the way first.

1. If you were never married, you don't get spousal support. Doesn't matter if you were together a long time. Doesn't matter if you thought that meant “common law” marriage; no such thing in California. (California will however recognize your common law marriage from another state, if your home state recognized you as married.)

2. What about this case called Marvin v. Marvin? That is an old case dealing w/ the actor Lee Marvin where the court found, under contract principles, that since Lee Marvin had promised his concubine to take care of her, then he must. Not really a common law marriage case.

3. I need to hang in there and stay with him for 10 years so I hit the jackpot and get alimony for the rest of my life, right? Wrong! Or rather, not necessarily. Many people think that 10 years is a magic absolute number when it comes to spousal support. Or that cohabitation with a member of opposite sex means termination of spousal support. Neither is 100% true. There are presumptions that come into play; e.g. marriage of more than 10 years is presumed to be of long duration and cohabitation creates a presumption that less spousal support is necessary.

Nevertheless, usually, unless the marital settlement agreement (MSO) reads differently, marriage (of the payee) terminates the SS obligation. And usually, not automatically, a marriage of less than ten years is considered of short duration and SS is paid for ½ of that term.

Now that we have this out of the way and we have determined who is entitled to SS, and roughly for how long, how does the court determine the amount. To answer that question, we have to ask “are the parties before the court “pre-judgment” seeking “temporary” support or are they now seeking “permanent” orders (or seeking to modify “permanent,” i.e. post-judgment, orders)?

For pre-judgment SS, the court will use a guideline calculator, same as the one used to calculate child support, to arrive at a guideline. Each county will use a slightly different guideline to arrive at the amount. For example, Riverside courts use the Santa Clara guidelines, whereas San Bernardino courts use Alameda guidelines.

At some point in the litigation though, the matter needs to be set for a “4320 hearing.” Family Code section 4320 states that, in ordering spousal support, the court must take the following factors into consideration, while trying to allow each side to maintain the standard of living they enjoyed while they were married and their “station in life” (difficult in most scenario as the finite amount of money has to pay for two households now):

1.  Marketable skills of the supported spouse;
2. The extent to which supported spouse's earning were impaired by taking care of the household instead of working during marriage;
3. The extent to which supported spouse contributed to the education of the supporting spouse;
4. The ability of supporting party to pay, including his income, ability, and assets;
5. The needs of each party based on standard of living enjoyed during marriage;
6. Obligations and assets of each party, including their separate property;
7. The duration of marriage;
8. The ability of the supported party to work without interfering with the interests of the dependent children being taken care of;
9. The age and health of the parties;
10. Domestic violence against the supported spouse;
11. Tax consequences to each party;
12. Balance of hardships to each party;
13. The goal that the supported spouse will be self-supporting within a "reasonable time;"
14. The criminal conviction of an abusive spouse; and
15. Any other factor the court deems relevant.

Though, again, the court is not allowed to use the guidelines in ordering permanent spousal support, off the record, many judicial officers I have talked to, tell me they do consult w/ the guidelines. Most, however, tell me they do so to see what the “tax consequences” are.

Gavron Warnings

Judicial officers have wide discretion in this area; some are willing to give the supported spouse a bit more time to become self-supporting than others. Remember, many of the supported spouses are often not working for years to stay at home and take care of the family. The longer you are out of the workforce, the harder is to get back in. At some point though, the court will order the supported spouse a deadline by which the court will want to see results, vis-a-vis becoming self-supporting. These are called Gavron warnings.

The need for legal advice and representation

The more discretion a court has, the more one will need legal advice and representation. No two fact patterns are alike and no two judicial officers are alike. Therefore, familiarity with the law and the judicial officers are imperative to being able to explain the unique fact pattern of each case and thus being able to getting results that are equitable to one's situation.