Spousal Support
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Spousal Support

  • How much spousal support will I have to pay?
  • How much spousal support will I receive?
  • How long will spousal support continue?

If you are going through a dissolution, or if you are thinking about filing for dissolution, you are probably wondering about these questions.

In some states, spousal support is called “alimony”; in other states, it is called “maintenance.” The Internal Revenue Service uses the term “alimony” in its publications and forms.

In California, spousal support is based upon the factors set forth in Family Code Section 4320. Those factors include the marital standard of living, the length of the marriage, the income or earning capacity of each spouse, the assets and obligations of each spouse, the age and health of each spouse, the extent to which the earning capacity of a spouse was affected by domestic duties, and the needs of each spouse based upon the marital standard of living.

The amount of spousal support is usually decided by negotiation. If a trial is necessary, the judge must consider all of the factors in Family Code Section 4320 and make findings on each factor.

The judge has wide discretion to decide the amount of spousal support after considering the 4320 factors. However, the duration of spousal support is subject to Family Code section 4336, which provides that in a marriage of long duration (more than 10 years), the court retains jurisdiction indefinitely over spousal support, unless the parties agree otherwise. As a practical matter, that means that if the court makes an order for spousal support at trial, and if the marriage is more than 10 years, the court cannot set a termination date unless the parties agree. Thus, spousal support will continue until the remarriage of the supported party, the death of either party, or further order of the court.

In such cases, the payor of spousal support will typically file for modification of spousal support when there has been a material change of circumstances after the divorce. For example, if the payor loses his job, or retires at the normal retirement age, that would be a change of circumstances which would justify a modification of support.

Another example of change of circumstances is if the supported spouse obtains a better job at higher pay, receives an inheritance, or if the supported spouse stops receiving child support for a child of the marriage.

The court can set a termination date for spousal support if the matter is before the court again in later proceedings, referred to as “post-judgment proceedings.”

Tax Effects of Spousal Support

Spousal support is taxable to the supported spouse and is entered on the first page of the U.S. Individual Income Tax Return in the Income section, on the line for “alimony received.” Spousal support is deductible by the payor spouse, and is entered on the first page of the U.S. Individual Income Tax Return in the Adjusted Gross Income section, on the line for “alimony paid.” In contrast, child support is not taxable to the recipient or tax deductible by the payor.

The different tax consequences of child support and spousal support are an important part of the negotiation of a settlement agreement.

Here is the important part of Family Code Section 4320:

In ordering spousal support under this part, the court shall consider all of the following circumstances:
  • (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.

Here is the text of the important part of Family Code Section 4336:

  • (a) Except on written agreement of the parties to the contrary or a court order terminating spousal support, the court retains jurisdiction indefinitely in a proceeding for dissolution of marriage or for legal separation of the parties where the marriage is of long duration.
  • (b) For the purpose of retaining jurisdiction, there is a presumption affecting the burden of producing evidence that a marriage of 10 years or more, from the date of marriage to the date of separation, is a marriage of long duration. However, the court may consider periods of separation during the marriage in determining whether the marriage is in fact of long duration. Nothing in this subdivision precludes a court from determining that a marriage of less than 10 years is a marriage of long duration.
  • (c) Nothing in this section limits the court's discretion to terminate spousal support in later proceedings on a showing of changed circumstances.