Spousal support is often the most contested issue in the dissolution of marriage action. The discrepancy of incomes during the marriage leads to a request for spousal support as the needy spouse argues that without support s/he is unable to maintain the marital standard of living. In cases of a stay-at-home spouse, the need for support is even greater since usually, the employment gap caused by child-rearing, is substantial.
In California, as a general rule, spouses and registered domestic partners, who are living together owe each other a duty of support. While spouses or registered domestic partners live together, they may not waiver the support duty. It cannot be contracted away or waived. Premarital agreements can handle support issues, however, they must meet strict statutory requirements and enforcement standards.
A spouse (or a domestic partner) may bring an action to enforce the duty of spousal support while the parties remain married.
Yes. The court may award temporary support while the dissolution action is pending. Many Requests for Orders (RFOs) are filed together with or shortly after the initial filing of the petition for dissolution of marriage.
The purpose of temporary spousal support is to maintain the marital standard of living while the dissolution of marriage action is pending. The court does not have to consider (but may) Fam. Code Section 4320 factors in deciding temporary support. The amount of temporary support is solely within the court’s discretion and it is broadly based on need and ability to pay. Often, it is decided using standardized support guideline software known as Dissomaster.
The needy spouse may move for temporary spousal support at the very outset of the proceedings by filing a Request for Order.
To award permanent spousal support, the court must consider; and weigh factors contained in Fam. C. Section 4320. It is an abuse of discretion for the court to, at that point, consider the DissoMaster software calculation.
The court weighs the factors differently in each case depending on the circumstances of each case. The marital standard of living is a reference point for the court. The court generally takes the marital standard of living to refer to a general station of life. It is considered in light of the earning capacities of the spouses. To determine the earning capacities if the spouse is not working or working below his/her capacity, the court often appoints a vocational examination.
One of the factors that the court considers in awarding spousal support is the need of the requesting spouse. It is improper for the court to consider the requesting spouse’s alleged expenses only without balancing the other factors. Actual marital expenses must be used instead of expenses that the requesting spouses propose as his/her wishes.
The goal of spousal support is self-sufficiency. The supporting spouse must become self-supporting within a reasonable period of time. A reasonable period of time usually means half the length of the marriage except for long-term marriage of 10 years and over. However, the court has the discretion to make that period longer or shorter. In a long-term marriage, the goal is still self-sufficiency, but the period of time is much longer, if not indefinite if appropriate.
The length of marriage impacts both the need for support and the amount and duration of the order. In marriages over 10 years, the court has no discretion to terminate spousal support jurisdiction unless the parties agree to terminate jurisdiction. Some marriages that are shorter than 10 years can still be considered to be marriages of “long duration” depending of several factors.
In setting permanent spousal support the court cannot use the temporary support amount as a benchmark. Instead, the court must consider all the section 4320 factors as though it was a new case. The court also cannot use any guideline support to set permanent support.
In 2019, the law regarding domestic violence and rebuttable presumptions regarding alimony awards changed. The California Family Code used to state that someone convicted of sexual domestic violence was prohibited from receiving alimony, while non-sexual domestic violence convictions would lead to a rebuttable presumption against alimony.
The current law is as follows:
Domestic Violence Prevention Act (DVPA) proceeding is another type of action where the court can order spousal support even if there is no pending divorce case. The court in those cases may order spousal support even before it finds that the spouse has been abused. The court cannot, however, award support to the responding party in a DVPA proceeding. If the respondent is seeking support, s/he must file a dissolution of marriage, nullity, or legal separation action. In default cases, the court cannot order spousal support unless it was requested on the petition.
In California, spousal support is not generally affected by evidence of fault. Exceptions include:
Evidence of “fault” does come up in cases where:
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