Spousal support, also known as alimony in other jurisdictions, may be an issue in a divorce, legal separation, or termination of domestic partnership. The goal, frequently pursued by spousal support attorneys in San Jose, is to ensure that the non-earning or lower income earning spouse does not suffer substantial economic harm as a result of the divorce, legal separation, or domestic partnership termination. Spousal support may be ordered payable to either the husband or wife, depending on the financial circumstances of the parties. Also, spousal support may be ordered on a temporary basis during the pendency of the court action and/or on a permanent basis such that support continues after a judgment in the case is entered.
Temporary Spousal Support
The goal of temporary spousal support is to provide an amount necessary for the other party’s (the lower-earning or non-earning party) support during the pendency of the divorce, legal separation, or domestic partnership termination.
Temporary spousal support is generally ordered based on county guidelines. The primary factor considered by Courts and taken into account by county guidelines is the relative incomes of the parties. However, ultimately, the court has discretion regarding the amount of temporary spousal support to award, and will look to the supported party’s need for the support and the supporting party’s ability to pay the support. The facts of a particular case should be presented to ensure that the correct amount and that the duration of the support is appropriate in a particular case. Also, if you are the supporting party, it is critical that the other party be made aware of his or her obligation to become self-supporting, and the Court can make orders that expedites this process.
Permanent Spousal Support
Permanent spousal support may be provided to a spouse post-judgment, meaning after the divorce or separation is finalized. Unlike temporary spousal support, the Court will not apply a guideline formula to determine permanent spousal support. Rather the Court must analyze a number of factors under Family Code §4320 to determine the appropriate amount of support.
The Family Code §4320 factors considered by the Court are the following:
- 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:
- he 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.
- 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.
- 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.
- 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.
- The needs of each party based on the standard of living established during the marriage.
- The obligations and assets, including the separate property, of each party.
- The duration of the marriage.
- 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.
- The age and health of the parties.
- 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.
- The immediate and specific tax consequences to each party.
- The balance of the hardships to each party.
- 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.
- 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 4324.5 or 4325.
- Any other factors the court determines are just and equitable.
California Family Code Section 4320.
The duration of permanent spousal support varies. While named permanent spousal support, it is not necessarily permanent. Typically, if a couple is married for less than 10 years, the court will order spousal support for no more that ½ the duration of the marriage. On the other hand, if the couple was married for more than 10 years, spousal support may be ordered longer than ½ the term of the marriage, and depending on the parties’ circumstances may continue until the death of either party, remarriage of the supported spouse, or further court order.
Due to the quantity and complexity of the Family Code §4320 spousal support factors, the issue of permanent spousal support can be a highly litigated issue, requiring legal expertise.
The attorneys at Aeschleman Law can help you determine your permanent spousal support rights or obligations, and then will advocate aggressively to protect your interests. The family law lawyers at Aeschleman Law can assist supported spouses in obtaining the spousal support they are entitled to. Conversely, if you are a supporting spouse or being asked to pay spousal support, Aeschleman Law will advise you in taking steps to minimize your obligation as well as advocate for you in Court if settlement is not possible.
A Gavron warning places the supported party on notice that s/he is expected to become self-supporting. This warning informs the party of the consequences of a Gavron Order. Gavron warnings are discretionary, and the Court does not need to issue such a warning. In fact, in some cases, the Court may justifiably have no expectation that the supported spouse will or should be employed in the future. Gavron warnings may be a precursor to a future reduction or termination of permanents spousal support, particularly if a spouse does not comply with the Gavron warning.
However, a Gavron warning need not be issued in order to reduce or terminate spousal support in the future. Rather, the only requirement is that the supported party is aware that he or she is expected to become self-sufficient in the future. This may be inferred from submitting to a vocational exam or even a stipulation addressing the spouse’s ability to obtain future employment.
A Richmond Order applies to long-term marriages. A Richmond Order is given at the discretion of the Court when it finds that spousal support should terminate on a fixed date, unless the supported party, prior to the date of termination, can demonstrate good cause why the Court should not terminate. See In re Marriage of Richmond, (1980) 105 Cal. App.3rd 352, 356. The supported party must demonstrate the aforementioned good cause to modify the amount of support and/or the duration prior to the specified termination date. After the specified termination date is reached, the Court no longer has jurisdiction over spousal support, and consequently, it does not have the authority to make orders/modifications regarding this issue.
The primary goal of a Richmond Order is to put both parties on notice that the supported party is expected to become self-supporting by the termination date. The order supports the legislature’s public policy goal behind Family Code §§4320(b) and 4330(l), which is to ensure that the both parties can be free of obligation to one another. The primary effect of a Richmond Order is that it shifts the burden onto the supported spouse, dissuading him/her from unreasonable delay in becoming self-supporting.
Richmond Orders will generally be granted unless 1. Spousal support is not ordered or only ordered for a fixed and short duration, 2. The circumstances of the marriage warrant true permanent spousal support, or 3. The supported spouse does not have the capacity to become self-supporting.
The family law attorneys at Aeschleman Law can assist you in determining whether a Richmond Order is appropriate in your case.
Lump Sum Buyouts
If a temporary or permanent spousal support order is appropriate, parties may also agree on a lump sum buyout. This is an exchange of a one-time payment or scheduled payments of funds for a waiver of an order for ongoing monthly spousal support. This approach is sometimes preferable when parties want to sever all ties, do not want the monthly obligation of paying support or waiting for payment of support, or when parties are looking for certainty as to the amount to be paid or received.
Get a San Jose Spousal Support Lawyer to Help Fight For You!
The experienced spousal support attorneys’ at Aeschleman Law can work with you to evaluate a reasonable lump-sum payment of spousal support, and help negotiate an agreement for a lump sum payment. However, the Court has no jurisdiction or power to make this order if the parties do not agree to it.
Aeschleman Law is located in San Jose and serves Santa Clara, Alameda, and San Mateo Counties. Call us today for an initial consultation at (408) 724-8930. You may also contact us by filling out the form on the bottom of this site.