Final Spousal Support by Judgment

We have discussed temporary spousal support in an earlier column (below). Now, let's discuss that final spousal support award that we call "Spousal Support by Judgment".

So, you have reached the end of your case. You have the temporary spousal support issues out of the way but now it is time to either settle and agree on a final spousal support number or let the court decide what it should be. What do you do?

Is the purpose of the final spousal support award still to maintain the status quo? Short answer: not really, although it is indirectly one of the many facts the court takes into consideration.

The information the court needs to make a final support award is different than temporary spousal support. Here is how it works. The court may order one spouse to pay support for the other spouse in “an amount, for a period of time, that the court determines is just and reasonable, based on the standard of living established during the marriage.” So, now we are dealing with the "standard of living established during the marriage." I know what you're thinking - what the heck does that mean? Here is what it means to the court and what the court takes into consideration when deciding how much, if any, spousal support should be awarded.

The focus is of course on earnings and earning capacity (what you earn as well as how much you can and should earn).

(1) The marketable skills of the person receiving or asking for support; the job market for those skills; the time and expenses required for that person 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. In other words, what can you earn, and what do you need to learn to earn that or more?

(2) The extent to which the present or future earning capacity of the person receiving or asking for support is impaired by periods of unemployment that were incurred during the marriage to permit the supported spouse to devote time to domestic duties. This is a common point of contention when one spouse was the homemaker while the other "brought home the bacon", to use a cliche.

(3) The extent to which the person receiving support or asking for support contributed to the attainment of an education, training, a career position, or a license by the person paying for support. Naturally, if one spouse put the other through school or worked while the other could go to school, the Court will take that sacrifice into consideration when awarding spousal support.

(4) The ability of the person paying spousal or being asked to pay spousal support to actually pay spousal support, taking into account his or her earning capacity, earned and unearned income, assets, and standard of living.

(5) The needs of each spouse based on the standard of living established during the marriage. Sound familiar? This is similar, though not identical, to the temporary support factor.

(6) The obligations and assets, including the separate property, of each spouse. What do you own and what do you owe? That's one very important fact the court takes into consideration.

(7) The duration of the marriage. Remember that marriages of less than 10 years are considered short term marriages most of the time. Marriages of 10 years or more are long term and spousal support may be lifetime support (with certain exceptions such as remarriage, etc.) and not just for a time that is 1/2 of the duration of the marriage.

(8) The ability of the spouse receiving support or asking for support to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the spouse. The court looks at the custody issues. If one parent has primary custody of the children and especially when there are more than one child, the court takes that into consideration when deciding whether or not that parent can work and, if so, how much.

(9) The age and health of the spouses. This goes without saying. The older the spouses get, the different their abilities and needs are.

(10) Documented evidence of any history of domestic violence between the spouses, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported spouse by the supporting spouse, and consideration of any history of violence against the supporting spouse by the supported spouse. Family Court does not take kindly to those who commit and/or have been convicted of domestic violence and if you have committed domestic violence and are asking for support, you may have an uphill battle. This is not cut and dry. This is a fairly complex area of support and like most rules, there are exceptions.

(11) The immediate and specific tax consequences to each spouse.

(12) The balance of the hardships to each spouse.

(13) The goal that the supported spouse shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration, a "reasonable period of time" is one-half the length of the marriage. The court wants everyone to work or become employed within a reasonable period of time. Even with long term marriages, the court will still expect a healthy and capable spouse asking for spousal support to get into the work force. The days of sitting back and hoping to get paid for the rest of one's life are pretty much gone (assuming they were ever here).

How much discretion does the court have to take these factors and others into consideration? A lot. The law gives courts "broad" discretion in deciding the amount of spousal support and the length of time provided. However, once the court has made a decision and awarded spousal support by judgment, the court cannot modify the order unless one of the spouses demonstrates a “material change of circumstances” justifying a modification.

To my readers: My name is B. Robert Farzad. I am the president of Farzad Family Law, APC. Our firm handles complex and simple divorce actions & related family law matters including those involving paternity, child custody and child support. Farzad Family Law, APC handles cases throughout Southern California including Orange County, Los Angeles as well as Riverside & San Bernardino Counties. To contact me with any questions, email me at rfarzad@farzadlaw.com or call us toll free at (877) 857-6500.