Spousal Support FAQ’s

Posted by 9 Mar, 2011

1. Is spousal support mandatory?

A spousal support award is not mandatory in divorce or legal separation cases in California.  Spousal support is often awarded at an Order to Show Cause on a temporary basis, where one spouse is earning significantly less than the other spouse or is unemployed.  The propriety of a California spousal support award is judged broadly by the parties’ “circumstances” in reference to the standard of living established during the marriage and their respective needs and ability to pay.

The Superior Courts of Los Angeles and Orange Counties have adopted a spousal support guideline for use in setting temporary spousal support.  This guideline provides that the obligor’s spousal support is to be 40% of net monthly income, reduced by one-half of the recipient spouse’s net monthly income.  If child support is being paid, the guideline level child support is first calculated.  Then, spousal support is determined.

2. How is the amount of spousal support determined?

The Courts are bound to consider 14 statutory factors in making a California spousal support order.  Some of the factors include but are not limited to: (1) ability to maintain marital standard of living in light of earning capacities; (2) contributions to other spouse’s education, training, etc.; (3) supporting spouse’s ability to pay; (4) “needs” in light of marital standard of living; (5) parties’ assets and debts; (6) duration of marriage; (7) employability of custodial spouse versus impact on children; (8) age and health of the parties and (9) history of domestic violence.

At the trial of the dissolution, the Judge will consider the 14 statutory factors in determining the amount and duration of spousal support.

3. How long will my spousal support last?

The duration of spousal support is closely linked to the length of the marriage.  Many attorneys speak of the “rule of thumb” that spousal support will last for one-half the length of the marriage.

The duration of spousal support is left to the sound discretion of the court.  In general, where the marriage has lasted more than 10 years, the court will, at the very least require a “reservation of jurisdiction.”  This means that, even if there is no current order for spousal support, the wife or husband may come back to court at a future date to request spousal support should the need arise.

4. Do I have to report the receipt of spousal support as “income” for income tax purposes?

The Internal Revenue Code provides that all spousal support payments are tax deductible by the paying spouse and taxable to the recipient spouse as “ordinary income.”  Thus, it is not uncommon for a negotiated settlement to include the payment of a high amount of spousal support, because such a payment results in tax benefits to the obligor spouse.

5. Does Spousal Support awards apply in Domestic Partnership Dissolutions?

Virtually all of the rights and obligations applicable between spouses under California law now apply to registered domestic partners — including spousal support during the partnership and after it is terminated.  Accordingly, references herein to “spousal support” should be deemed also to include “partner support.”

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