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Spousal
Support
Temporary spousal support (also called
alimony) is financial support that one spouse seeks against the
other while the case is pending. The spouse seeking alimony
must make a formal request and file a document called an "order
to show cause" or "motion".
Once the appropriate documents are filed, a
hearing date is set and the spouse seeking alimony must serve
the other spouse with the order to show cause or motion.
Seeking temporary spousal support is not always a simple
process. The documents filed with the court must include an
affidavit, an income and expense declaration and certain
mandatory attachments to the income and expense declaration.
While temporary alimony during a pending case is not guaranteed,
it is generally awarded by Orange County judges pursuant to
California law when "necessary for the support" of the other
spouse. This temporary support is based on the "need" of the
spouse seeking it and the "ability to pay" of the other spouse.
The purpose of it is to help maintain the status quo position of
the parties (since in traditional households, one spouse is the
working spouse while the other earns less or no income) as close
as possible pending final resolution of the divorce or legal
separation case.
You may ask, how does the court determine
the amount of temporary spousal support? In Orange County, most
judges rely on an established computer program to make this
determination. Orange County, like many courts, has adopted
standardized temporary spousal support "guidelines" that provide
appropriate temporary spousal support based in large part on
each spouse's relative income. California courts have ruled
that "the use of such guidelines should be encouraged to help
lawyers and litigants predict more accurately what temporary
support order would be issued if the case proceeded to a
contested hearing." Therefore, do not be surprised if there
isn't a lengthy hearing on the temporary spousal support
hearing. The judge in Orange County may simply put in the
relative incomes of the parties and certain other mandatory
numbers based on the evidence before the judge and use the
number that the computer program generates as the alimony
number. Fortunately, our law firm uses the same computer
programs the judges use so we can give you an estimate of what
the court will rule before the hearing.
Temporary spousal support does not always
equate the payment of money by one spouse to the other.
Sometimes, it equates the payment of debts. It is common for
judges, especially when requested by the spouse seeking
temporary spousal support, to order the temporary support in the
form of paying for mortgage, car, insurance or other debts.
Finally, there is the issue called
"retroactivity". In essence, the question becomes how far back
in time does the spousal support order go. In Orange County,
temporary spousal support is generally made retroactive to the
date of the filing of the motion or order to show cause.
EXAMPLE: If the order to show cause is
filed on October 1 and the hearing is November 15, when the
Orange County court orders temporary spousal support on November
15, the court will put the start date of the spousal support on
or around October 1. Therefore, the spouse paying spousal
support is technically behind in support (called "arrears") at
the time he or she learns how much to pay. This little problem
is rectified by most Orange County judges by giving the paying
spouse a reasonable payment plan on the "arrears" portion of the
support, assuming of course one is even needed.
Now that we have discussed temporary
spousal support, let us move on to a slightly more complex issue
- final spousal support. The major difference between temporary
and final spousal support is that there are no computer programs
to offer assistance. Instead, final spousal support is based on
"an amount, for a period of time, that the court determines is
just and reasonable, based on the standard of living established
during the marriage." Earnings and earning capacity is the
focus of the court and the court takes the following factors
into consideration:
(1) The marketable skills of the person receiving or asking for
support; the job market for those skills; the time and expenses
required for that person 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 present or future earning capacity
of the person receiving or asking for support is impaired by
periods of unemployment that were incurred during the marriage
to permit the supported spouse to devote time to domestic
duties. This is common when one spouse is a homemaker and the
other worked throughout the marriage.
(3) The extent to which the person receiving support or asking
for support contributed to the attainment of an education,
training, a career position, or a license by the person paying
for support.
(4) The ability of the person paying spousal or being asked to
pay spousal support to actually pay spousal support, taking into
account his or her earning capacity, earned and unearned income,
assets, and standard of living.
(5) The needs of each spouse based on the standard of living
established during the marriage.
(6) The obligations and assets, including the separate property,
of each spouse.
(7) The duration of the marriage. Generally, marriages of less
than 10 years are considered short term marriages. Marriages of
10 years or more are long term. Spousal support may be lifetime
support (with certain exceptions such as remarriage, etc.) in a
long term marriage, while it may be 1/2 of the duration of the
marriage in a short term marriage. There are exceptions to
these rules.
(8) The ability of the spouse receiving support or asking for
support to engage in gainful employment without unduly
interfering with the interests of dependent children in the
custody of the spouse.
(9) The age and health of the spouses.
(10) Documented evidence of any history of domestic violence
between the spouses, including, but not limited to,
consideration of emotional distress resulting from domestic
violence perpetrated against the supported spouse by the
supporting spouse, and consideration of any history of violence
against the supporting spouse by the supported spouse.
(11) The immediate and specific tax consequences to each spouse.
(12) The balance of the hardships to each spouse.
(13) The goal that the supported spouse shall be self-supporting
within a reasonable period of time. The court wants both
spouses to work or become employed within a reasonable period of
time. This is true even in long term marriages.
Final spousal support is in the court's
discretion. There are no formulas. The court takes all of the
above 13 factors into consideration and makes a ruling based on
each of them. Therefore, final spousal support may be less, the
same or more than the temporary support.
SPOUSAL SUPPORT ARTICLES
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