Any discussion of spousal support needs to address two factors: the amount of support and for how long the support will continue.
Amount of Support
In short-term marriages, courts use a formula to determine the amount of spousal support. The same formula can be used as a guideline to determine temporary spousal support in long-term marriages. However, case law holds that it is an abuse of the court’s discretion to use the formula in setting permanent spousal support in long-term marriages.
Before setting permanent support in long-term marriages, courts must consider what family law practitioners call the “4320 factors.” These factors are outlined in Family Code Section 4320 and include but are not limited to, the following: the length of the marriage, the needs and earning capacity of both parties, whether or not the parties have minor children, the age and health of the parties, the allocation of debts, whether one spouse helped the other spouse get an education, whether there was domestic violence in the marriage, and any tax consequences.
Duration of Support
The duration of support depends on the length of the marriage. For short-term marriages, (marriages of less than ten years) support usually lasts for half the length of the marriage. For long-term marriages, (marriages of more than ten years) the court has great discretion in determining the duration of support. The general trend shows a gradual movement away from orders of lifetime spousal support. In most cases the courts will give what is called a “Gavron Warning” to the supported spousal, warning them to take steps towards becoming self-supporting.
Unless the parties have stipulated to the termination date, or the court has ordered that support terminates on a certain date, spousal support terminates when either one of the parties dies, or when the supported party remarries.
Our clients are encouraged to be creative with spousal support. For example, calculating spousal support as a lump-sum amount can be used to their benefit. Some of our clients want a clean break from their ex-spouse and prefer a lump-sum amount so that they can pay off separate property debts or just lessen contact with their ex-spouse. Some clients want to buy the family home rather than have it be sold or go to their ex-spouse. These are some examples of cases where the lump-sum present-day value of spousal support can be used as leverage when discussing the property division aspects of the case. Again, each case is unique, and getting, or agreeing to pay, a lump-sum spousal support award might not be in your best interest.
Waiver of support
Clients often do not see the difference between setting spousal support at zero (or reserving the court’s jurisdiction over spousal support) and waiving spousal support. When you waive spousal support, you are essentially taking away the court’s jurisdiction or power to order spousal support to you if you need it in the future. However, when you reserve spousal support, you are not taking away the court’s power to grant an upward modification of spousal support at a future date.
Spousal support is usually waived only in short-term marriages. In long-term marriages, the court will usually retain jurisdiction over the issue of spousal support indefinitely.
Modification of support
Just as child support can be modified by showing a change in circumstances, spousal support can also be modified or terminated when the party seeking the modification can show a change of circumstances justifying a modification of the order. Even if your order obligates you to pay lifetime support, there are things you can do to modify or terminate support. Our appellate court has handed down several cases that can be to your advantage.
The court’s power to modify spousal support is outlined within the terms of the judgment. For example, if spousal support has been waived, the court cannot award spousal support under any circumstances. Similarly, if the judgment states a clear date with spousal support terminates, the party requesting a modification of spousal support must bring their action before the termination date. Once the date passes, it is too late to bring an action to modify spousal support.
Spousal support, especially in long-term marriages, can have devastating effects if not handled correctly right from the beginning. Please call us for a free consultation.