In order to receive spousal or partner support, one party has to file a case for dissolution and request the court to make an order for “temporary spousal support” or a “temporary partner support order.” When support is ordered after the divorce or legal separation becomes final, as part of the final divorce or separation judgment, this is called permanent (or long-term) spousal or partner support.
Generally, in a marriage of less than 10 years the spousal support award can be for half the duration of the marriage. But with a long-term marriage of greater than ten years, the spousal support award can be indefinite.
The factors a court must consider when reviewing a request for spousal support are found in Family Code section 4320. Family Code 4320, subdivision (a), provides, “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:
(1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to
acquire other, more marketable skills or employment.
(2) The extent to which the supported party's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
(b) 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.
(c) 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.
(d) The needs of each party based on the standard of living established during the marriage.
(e) The obligations and assets, including the separate property,
of each party.
(f) The duration of the marriage.
(g) 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.
(h) The age and health of the parties.
(i) 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, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.
(j) The immediate and specific tax consequences to each party.
(k) The balance of the hardships to each party.
(l) 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.
(m) 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.
(n) Any other factors the court determines are just and equitable.
But Family Code section 4321, provides, “In a judgment of dissolution of marriage or legal separation of the parties, the court may deny support to a party out of the separate property of the other party in any of the following circumstances:
(a) The party has separate property, or is earning the party's own livelihood, or there is community property or quasi-community property sufficient to give the party proper support.
(b) The custody of the children has been awarded to the other party, who is supporting them.
Family Code section 4322, provides that "where there are no children, and a party has or acquires a separate estate, including income from employment, sufficient for the party's proper support, no support shall be ordered or continued against the other party."
Further, Family Code section 4323, subdivision (a)(1) provides, "Except as otherwise agreed to by the parties in writing, there is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabiting with a non-marital partner."
Thus, there are a variety of circumstances that affect the court's decision to award spousal support but primary among those considerations is the length of the marriage or domestic partnership. The law says that, in general, a “reasonable period of time” for spousal support order may be one-half the length of the marriage/partnership. But the law also says that the judge has discretion (power) to make a different decision given the specific circumstances of the case.
But an important exception occurs when a marriage or partnership is considered a “long-term” marriage or partnership (usually 10 years or more). In that circumstance, a judge may not set an end date to the spousal or partner support.
The length of the marriage or domestic partnership is generally from the date of the marriage to the date of the separation. Because the date of separation can have very important consequences when it comes to deciding spousal or partner support, the parties in a divorce or separation case may not be able to agree on a date of separation, and the judge may have to decide what that date will be. A recent court decision, In re Marriage of Davis, decided on July 20, 2015, states that one party must move away from the marital home for a couple to legally separate in California.
Also, the judge can take into account the periods of separation during the marriage/partnership in deciding if the marriage/partnership is of long duration.
Furthermore, when deciding spousal or partner support, the judge must take into account any documented evidence of a history of domestic violence between the parties. When the spouse or partner that would pay the support is the abusive person, the judge will consider any emotional distress resulting from the violence suffered by the spouse or partner to be supported. But the judge will also consider any history of violence at the hands of the spouse or partner to be supported against the person that would pay the support. There is a rebuttable presumption against giving spousal or partner support to an abusive spouse or partner who has a criminal conviction for domestic violence against the other spouse or partner. This means that, in general, the court won’t do this unless the party seeking support shows exceptional circumstances which merit a spousal support award.
For further information on this topic, speak to an experienced Family Law attorney, or if you cannot afford an attorney speak to the Family Law Facilitator at your local court, and go to a local law library to obtain additional information or use a book that explains Family Law to help you. Good luck.
Copyright © 2015 Christine Esser
The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney-client relationship is only established when a written retainer has been signed.
Dislcaimer: if you click the links below you will be directed to the Amazon website. The following books have been found helpful to some people. who cannot afford to retain a Family Law lawyer or who want to better understand the divorce process. Good luck.
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