Spousal Support- How is it calculated and how will I receive any?

Spousal Support- How is it calculated and how will I Receive any?

By Diana L. Mercer, Esq Mediator and Founder of Peace-Talks.com Diana Mercer Diana is the founder of Peace Talks, Collaborative Divorce Attorney and the co-author of

Making Divorce Work: 8 Essential Keys to Resolving Conflict and Rebuilding Your Life (Penguin 2010) and Your Divorce Advisor: A Lawyer and A Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster, 2001). After 12 years of practicing as a top divorce litigator (1988-2000), she now devotes her practice solely to mediation. She has conducted over 4000 mediations, and has received over 450 hours of specialized, professional Family Law Mediation training.

The issue of spousal support is always a part of any divorce case or mediation. The circumstances for an award of spousal support are evaluated individually and there is no automatic dollar determined for each person. The process of calculating spousal support is a process of weighing specific factors, which are provided in Family Law Code Section 4320. According to statute, the judge must consider the following circumstances in establishing permanent spousal support: (a) 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, 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 4325. (n) Any other factors the court determines are just and equitable.

You can see from this laundry list of factors some sections may apply to your situation and others may not. It is important to know that during mediation at Peace Talks, spousal support is a topic that is discussed in the context of a negotiated agreement between both parties. Unlike the requirements of the court, we can consider the issues that are important to you and reach a spousal support figure that is specific to your family’s needs.

As mentioned in the long list above, the length of the marriage is considered. In a marriage of less than 10 years, the general rule is that the spousal support will last for half the length of the marriage. For example, if you were married for 5 years, your spousal support will last for two and a half years.

However, the exact amount of time is left to the discretion of the court. Usually in longer marriages, the court will not give a definitive cut-off date for support. The burden will be on the party who is paying the support to demonstrate it is no longer needed. If you remarry, your spousal support is terminated.

Once you have separated, you may seek temporary spousal support. In a litigated case, to obtain support a motion for an order is necessary. The purpose of temporary spousal support is to maintain the living conditions and standards of both parties until permanent support has been established. The Superior Courts of Los Angeles and Orange County use a guideline called the Santa Clara Guideline formula for calculating temporary support. This guideline provides that spousal support can be up to 40% of his or her net monthly income, reduced by one-half of the receiving spouse’s net monthly income. As with permanent spousal support, there may be extenuating circumstances, i.e. serious health condition of one spouse, that makes an increase (or at times, decrease) available.

If you do go to court to get an order for support, the judge will want to preserve the status quo and provide the requesting spouse with sufficient income for basic needs consistent with the parties’ lifestyle. It should be noted that the court would not order a spouse who has been the primary caretaker at home to seek immediate employment. However, a review of the spousal support factors above does require that an individual become self-supporting in a reasonable amount of time.

Again at Peace Talks, our clients wish to avail themselves of an open, transparent, and trusting mediation process. It is our experience that in most cases our clients are able to work out an amount of temporary support that preserves the status quo until the mediation is complete. We know treating each other with respect and dignity is important and everyone’s best interests will be considered.

Additional information to be aware of is the tax consequences of spousal support. The Internal Revenue Code provides that all spousal support payments are tax deductible by the paying spouse and taxable to the recipient spouse as “ordinary income.” Since we are able to discuss creative solutions at Peace Talks, it is possible that you may decide with your partner to not receive “spousal” support, but be compensated in another way to achieve the assistance that you need. That is the beauty of mediation.

About Peace Talks Diana Mercer is a Spousal Support Checklist and President at Peace Talks Mediation Services; it provides mediation services, Spousal Support Law and spousal support attorney. Contact Peace Talks for More information about Divorce mediation Services.

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