State statute requires that a specific list of factors be weighed.
From a future economic standpoint, the determination of spousal support is a major component of a final divorce settlement or court order. It is important for each party - the supporting party and the supported party, to use the language of California statute - to consult an experienced family lawyer about alimony, a complex area of state law.
Knowledgeable legal counsel will know what financial data and other assets must be uncovered to enable a thorough analysis of the entire estate and what might be a fair spousal support arrangement. In addition, tax consequences must be carefully considered. Armed with a thorough understanding of the economic circumstances, a divorcing spouse's lawyer can enter into negotiation with the other side to see if a reasonable agreement can be obtained on the alimony issue.
If settlement on the issue is impossible, the judge in the divorce will determine whether to award spousal support and how the award will be structured as far as amount and duration. During the court proceedings, a party can ask the court for a temporary support order that would provide alimony payments until the divorce is final, at which point a permanent order would take effect.
California statute directs the judge to weigh each factor in a specific list as well as anything else "just and equitable." Here are the named factors:
- Whether each party's earning capacity can maintain the marital standard of living, including any impact on earning capacity of periods of unemployment during the marriage to contribute "domestic duties" as well as the supported party's marketable skills and whether there is a job market for them, or whether he or she needs retraining or education
- Whether the supported party contributed to the other party's education and career
- Ability of supporting party to pay
- Each party's needs in light of the marital standard of living
- Debt and assets of each spouse
- Marriage duration
- If the supported party will care for dependent children, whether working would interfere with their interests
- The party's health and ages
- Domestic violence
- Tax consequences
- Comparison of hardships between the parties
The law provides structure for determining the duration of support and the judge may vary the statutory duration provisions at his or her discretion to account for the circumstances. For marriages not of long duration, California statute says that it is the goal for the supported party to become self-supporting in a reasonable time, which is generally half the length of the marriage.
Long duration is usually a 10-year marriage, depending on the circumstances such as gaps of separation during the marriage. If the judge deems marriage to be of long duration, no end date for the support may be set. The court retains jurisdiction and can modify or terminate the order for changed circumstances in the future. This is in contrast to some other states that have recently changed their laws to discourage alimony of indefinite or permanent duration.
Any alimony order will end if either party dies, the court order provides for it or the recipient remarries. Either party may also go back to court to request a modification of a support order if there is a change of circumstances.
While this article talks of spousal support in divorce, it is also an issue in legal separation. When partners in a California domestic partnership divorce or separate, the law that applies is the same and the support is called partner support.
The lawyers at Klein DeNatale Goldner with offices in Fresno, Bakersfield, and San Diego advise and represent people facing divorce throughout the San Joaquin Valley.