When is Spousal Support Appropriate?

When celebrities divorce, we invariably hear about disputes over "alimony." In California, alimony is called "spousal support." When a married couple divorces, the court may order the higher earner - husband or wife - to pay money to the lower earner for some period of time, as determined by the trial judge. There are two types of spousal support: "temporary support" is paid while the divorce case is working its way through the system to maintain the financial status quo between the parties, and "long term" support (sometimes called "permanent support," notwithstanding it is not always actually permanent in duration), the purpose of which is to help the supported spouse get on their feet so they can support themselves. Long term support starts (typically) when the case concludes.

Determining temporary support is quite simple. Most courts use a simple formula to calculate temporary support. Setting a long-term support order award is more challenging; the court must consider 14 factors, including earning capacity, marketable skills, age, health and duration of marriage as well as the marital standard of living. Since every divorce is unique, it is difficult to predict the outcome of the court's consideration of all the factors. Additionally, even though support payments used to be tax deductible on the payor's federal tax return (and includable in income for the recipient), the recent Tax Act of 2017 changed that; alimony (spousal support) is no longer deductible (or includable) for federal tax purposes. In California, however, spousal support continues to be deductible and includable.

Spousal support is neither mandatory nor automatic in a divorce proceeding. In fact, courts have broad discretion to deny it altogether. A court will also place limitations on amount and duration to reflect the ability of both parties to live independently and to manage these payments.

In California, the general rule (subject to exceptions) is that spousal support payments will be paid for half the length of a marriage of less than ten years. For marriages of longer than ten years, the court is not so limited, and it can set the amount and duration it deems appropriate, often (not always) retaining the power (jurisdiction) to modify its orders as it deems appropriate. Spousal support is not often made "permanent" (terminable only on death or remarriage) unless age or disability make the expectation of becoming self-supporting unlikely. Also, the recipient party is expected to make reasonably good faith efforts to become self-supporting. The failure to make such a good faith effort is reason enough for considering modifying or even terminating support.

If you believe you are paying too much or not receiving enough, be sure to address those concerns with the court. If the supported spouse is no longer in need (e.g., obtains employment or otherwise becomes financially self-supporting) or if the supporting spouse becomes unemployed or earns significantly more (or less), it may be time to revisit the order due to changes in circumstances.

If you and your former spouse can agree on the terms and conditions of support payments, the court will usually uphold the agreement. Unlike child support, the parties are free to make whatever agreements they desire between themselves on spousal support, even an agreement to waive it altogether. In the author's opinion one should not rely on spousal support for their long-term financial goals because one never knows what the future will bring, and there is always the risk that something could occur in the future that makes it impossible for the supporting spouse to continue those payments, and then what? So be mindful of the transient nature of spousal support and consider insisting upon a policy of life insurance on the life of the supporting spouse (where the recipient spouse is the beneficiary) to ensure the recipient spouse is protected.

The implementation of these orders and their subsequent modification are a trap for the unwary, so if spousal support is in your future you should consult with an experienced family law attorney to ensure your rights are protected.

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