How Do Courts Determine Spousal Support After the Petition for Divorce Has Been Filed?
After A Divorce Is Filed The Spouse Who Desires Spousal Support Must Ask The Court For An Order of Temporary Support
If there is a disparity in the income of spouses, then a spouse may seek temporary support payments (commonly referred to as alimony). This occurs after a petition for divorce has been filed but before the divorce trial or stipulated judgment has been issued. The party seeking support asks the court through a formal, written request for orders of support.
What is the purpose of temporary support and how is it calculated?
The court will make a determination of the amount of support, if any, pursuant to a mathematical formula found in the Family Code. The goal of temporary spousal support is to maintain the marital living conditions as they were prior to the filing. It is rarely possible to maintain the living conditions as they were before the filing. The court will take into consideration the income of the parties and usually using a software program (the most popular and common is DissoMaster but there are others such as Xspouse and CalSupport) determine the support amount.
In Los Angeles and Orange Counties the court will consider gross income and tax implications and will follow what is called the Santa Clara guideline of 40% of the spousal support payer’s net monthly income reduced by 50% of the spousal support receiver’s net monthly income. Since temporary spousal support is aimed at allocating the family income to maintain the parties’ pre-separation living conditions (or get as close to it as possible), the court often does not consider the earning capacity of a non-working spouse.
Is There A Difference Between Temporary Support And Spousal Support Ordered After A Trial?
There is an important difference between how a court determines temporary support and how it determines long term support. Support ordered after a trial is properly described as long-term support. It is often referred to incorrectly as permanent support. Long term support may be awarded by the court after it considers the 14 factors set forth in Family Code Section 4320. The purpose of long-term support is not to maintain the status quo but to provide financial assistance based on the marital standard of living.
So how long should long-term spousal support last? Earning capacity is considered by the court and a vocational exam to assess the supporting party’s marketable skills and opportunities may be required. In marriages of ten years or longer the court if support is ordered the court often maintains jurisdiction to modify support indefinitely. Support ends on death or remarriage. Shorter term marriages often have orders for support for half the length of the marriage (see Family Code Section 4336).
Long-term spousal support orders that do not reflect an independent consideration of all the statutory circumstances which are applicable to a particular case are reversible for an abusive discretion. The facts of each marriage are unique and therefore the factors in Section 4320 cannot be given equal weight from case to case. The weight to be given each of the statutory factors in a particular case is in the discretion of the judge and is an area in which an effective divorce attorney can be valuable.
The amount of temporary support is fairly formulaic. However, the court has discretion, in fact must exercise discretion, in awarding long term support after a divorce. When the parties agree to a support amount and there is no trial on the issue, there’s no problem. When there is a trial on the issue of long term support effective divorce attorneys can argue for more or less support depending on whom they represent. Here is a link to the 14 factors that the court considers when making an order of long-term support. The factors are found in Family Code 4320- 4326.
It’s generally better to resolve family law matters collaboratively; however, if you anticipate a dispute over support or any other matter that will require a trial ensure that your divorce attorney has the experience and skills to ensure that your interests are properly represented.