A large portion of this company’s California mediation practice focuses on assisting couples seeking to end their marriage through mediation as opposed to litigation. It is amazing to me how often couples seeking our guidance come in with well ingrained false notions regarding spousal support as it operates under California law. With the amount of misinformation on the internet, I find myself constantly reeducating couples on the truths of spousal support. The three misconceptions below come up so often I felt compelled to address them. Read below to see if you are a victim of false information.
One of 3 general misconceptions is often at the root of having to reeducate a party from what they have gleaned off of the Internet or from poorly informed friends.
Myth # 1 – Alimony Is an Absolute Right
Spousal support is not mandatory in dissolution or legal separation proceedings. As a matter fact, quite the contrary is true. Courts have broad discretion to deny spousal support altogether ( 1).
Before a judge orders or denies spousal support there must first be a careful consideration of the legal factors ( 2). These factors shed light on how the earning capacity of each party is, or is not, enough to maintain the lifestyle established during the marriage taking into account all of the following 15 factors:
- The 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 4325.
- Any other factors the court determines are just and equitable.
Clearly doing this evaluation is a daunting task. Even if you do not go through each one, take a special look at the crucial “15th” factor; “Any Other Factors the Court Determines Are Just and Equitable“. Many Family Law practitioners refer to this factor as the “Wild Card”.
In California the issue of determining spousal support becomes even more complicated. This is because of the fact that the single largest line-item in any family budget is, generally, housing. When you split up a single household and attempt to support two separate households there is rarely enough money to go around guaranteeing both parties the same standards they enjoyed during marriage.
When you are contemplating how all of the above factors impact upon your individual situation also think about this. On the Judgment( 3) form which is used in every single dissolution action in California the following words appear:
NOTICE: It is the goal of this state that each party shall make reasonable good faith efforts to become self-supporting as provided for in section 4320 of the family code. The failure to make reasonable good faith efforts may be one of the factors considered by the court as a basis for modifying or terminating support.”
So there you have it. It is the express public policy of the state of California that everybody supports themselves.
Where does that leave two people thinking about divorcing and trying to plan for their separate futures?
On the one hand, by no means is spousal support impossible. It happens and is so ordered, every day. On the other hand, those seeking support are walking into the headwind of the stated public policy of California. The answer to this question, like so many questions in legal proceedings, is that it is better to negotiate an agreement on the issue of spousal support rather than leave it to the recklessly spinning “Wheel of Misfortune” ( 4) that is litigation.
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Myth # 2 – After 10 Years Alimony Is “Guaranteed for Life”.
Being married for more than 10 years does not cause one party to become the “indentured servant” of the other party. We learned from Myth #1 that spousal support, if any, the amount of spousal support, and the duration of that spousal support is determined by a careful balancing and weighing of legal factors( 5).
The confusion on this point might be traceable to Family Code §4336. This section makes it clear that in a marriage of “long duration” the court retains jurisdiction indefinitely on the issue of spousal support. This section clarifies that there is a presumption that a marriage of 10 years or more is a marriage of long duration. This means the door to the court remains open, but there is no guarantee that support will be ordered.
The same factors that must be weighed and balanced when the divorce is fresh must also be evaluated at any step down the road when a party is seeking spousal support. If the supported party has not made reasonable good faith efforts to become self-supporting they may find themselves denied in any future application for continuing support.
Myth # 3 – The Amount of Alimony Is Determined by a Computer Program.
I can’t tell you how many times we have couples come to our offices and one or the other will say, “We already know what the spousal support amount is, we ran the number”. To which we must reply no, no, no. If only it were that simple.
The law is the law. Family Code section 4320 must be followed in ascertaining the proper amount of spousal support.
This confusion comes from the fact that the computer programs that allow a court to calculate proper child support also have a function to determine proper temporary spousal support.
The typical situation is as follows:
- There’s a marriage and the breadwinner decides that he or she has had enough and moves out.
- The supported spouse files for dissolution or legal separation.
- Courts move very slowly and there won’t be a trial on this matter for 18 to 24 months( 6). What’s a party to do?
- The party goes into court on a short term calendar known as an “Order to Show Cause”, or “Noticed Motion”.
- These matters can be in front of a judge in 14 days or less. However they are usually limited to no more than 20 minutes( 7)
- On a short cause calendar the Judge has little or no evidence before her to do the exhaustive examination called for by Family Code section 4320.
- Instead, the law allows for the ordering of temporary spousal support until there is a trial or other settlement. For this very limited purpose a Judge is allowed to use the temporary spousal support function of the child support calculation program( 8).
Sadly, it is true that there are a lot of lazy lawyers and lazy judges who rely on this temporary support calculation to calculate long-term support.This is an error. It is settled law in California that temporary spousal support computer programs cannot be used to determine “permanent” spousal support. It is also very clear in the law that the number produced by a temporary spousal support calculator cannot even be used as a “jumping off point” to begin negotiations of proper spousal support. The required weighing of legal factors cannot be delegated to a mere computer program ( 9).
So where does this leave people looking to end their marriage?
The fact of the matter is it leaves them in the very best position to determine what appropriate spousal support is in their unique situation. It also makes it clear that it is ill-advised to try and arrive at that number in anything other than a thoughtful, negotiated method. The parties who’ve been husband and wife must sit down together and do their best to plan how they will manage to live separately. Attempting to do it any other way is wasteful, expensive and very stressful. It is smart to attempt this task in the form of a “supported conversation” with a professional mediator, well-trained in family law and finance who can assist the parties in arriving at the best resolution possible.
David D. Stein has been an attorney for 20 years and the founder of Liaise® Divorce Solutions. He is a trained mediator, dispute resolution specialist and lecturer on non-violent conflict management techniques and tools.
- Marriage of Pendleton and Firemen (2000)
- As set forth in Family Code 4320
- In California, divorce is done using “shortcut” pleadings forms produced by the Judicial Counsel
- “Wheel of Misfortune” because if you consider the cost of paying two lawyers to argue your case, it is a rigged game and there is no way a family can “win”
- Enumerated in Family Code 4320
- 18 to 24 month was the time estimate in the “good old days.” Today a trial in 24 months is lightning fast
- These hearings are further constrained as to the evidence that may be presented
- This “short form” spousal support calculation only takes into account income, ignores expenses and cannot possible provide for the comprehensive review mandated in the Family Code
- [Marriage of Burlini (1983); Marriage of Olson (1993); Marriage of Schulze (1997); Marriage of Zywicel (2000)]