Spousal support is an issues that can have consequences for years if not properly addressed early in a divorce, in how to not only prepare to pay the least amount possible at the beginning of the divorce but after the divorce is final. FRLG is very thorough in explaining this issue and what the client must do to minimize this obligation if the court orders spousal support.

Spousal support (often referred to as alimony) requires a spouse with the financial wherewithal to provide financial assistance to the other spouse if that spouse has a financial need. Spousal support is generally taxable to the recipient and tax-deductible to the payor.

The length of the spousal support order is generally more predictable since it is typically determined by the length of the marriage. In a long-term marriage (over 10 years), spousal support “may” last until the remarriage of the payee or the death of either party. On the other hand, in a short-term marriage (less than 10 years), the rule of thumb is that spousal support is typically awarded for a term equal to one-half the term of the marriage.

Although “income” that is available for the payment of spousal support is defined, there are many gray areas. Furthermore, the court is required to look at a “representative period” in determining “income” that is sustainable. In light of the broad discretion the courts have in these areas, the amount of a spousal support award is unpredictable.

For the two types of spousal support: temporary and permanent. In general, the amount of temporary spousal support is more predictable than the amount of permanent spousal support. To determine how much temporary spousal support should be, most judicial officers rely on a computer formula (Dissomaster or X-spouse). The objective of temporary spousal support is to maintain the living conditions and standards of the parties in as close to the status quo position as possible pending trial and the division of their assets and obligations.

The purpose of permanent spousal support, on the other hand, is to provide financial assistance, if appropriate, as determined by the financial circumstances of the parties after their dissolution and the division of their community property.

Although it is called “permanent” spousal support, it is not necessarily paid permanently. Permanent spousal support may last for a very short period of time. Courts are prohibited from using the formula (used to determine temporary spousal support) to set permanent spousal support. Rather, courts are required to consider, evaluate, and balance many different factors in determining the extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage (Family Code §4320(a)).

Because courts have so much discretion in determining just how much weight to give to each of the many factors (the various factors to be considered are set forth in Family Code §4320), permanent spousal support awards (both the amount and the duration) can vary widely.

Furthermore, a court can “impute” income, meaning, come up with an amount of income that either party should be earning based on factors like employment history, education, training, and the availability of current employment opportunities.

Accordingly, a party who intends to avoid paying spousal support by refusing to work or working less rarely gets away with it. Similarly, a party may not be able to claim his/her need for spousal support based on the fact that he/she has no income if the court determines that the party has the skills and the opportunity to become employed and thus imputes income to the party seeking support. Depending on the amount of income imputed to the party seeking support, the support amount may either be diminished or eliminated.

Spousal support can be structured in numerous ways based on the then existing circumstances. Often, the payments are made monthly, in equal amounts. Alternatively, spousal support is often comprised of two components: a base monthly payment and a supplemental payment paid periodically when the payor’s income includes compensation (Bonuses, over and above a regular salary) paid on a periodic basis such as a bonus or a commission. This latter method is commonly referred to as the Ostler-Smith method.