A spouse desiring spousal support has to make a request for such spousal support. It is not automatically granted.
The court considers several factors based on guidelines provided in the Family Code.
Family Code is the codified law enacted by the State of California and deals with issues surrounding Dissolution of Marriage (aka divorce), Parentage issues, Child Support and other related issues.
Several factors determine the award of spousal support and are too many to list in this discussion. However, some of the main ones are: length of the marriage, income earning capability of the parties, age and health of the parties, history of violence, tax burden of support on parties, number of children and which party has the custody of the child(ren), need of the parties, etc.
Two of the biggest factors which guide and dictate spousal support are: (1) length of the marriage and (2) children related factors such as number of children, age of children, effect of separation of parents on lifestyle, child support being ordered, etc. Typically, the longer the length of marriage, the longer the spousal support period is. The goal of spousal support is that the supported party shall be self-supporting within a reasonable period of time.
The two parties’ respective assets and liabilities, before and after the divorce, also play a considerable role. “Need” includes more than “bare necessities of life.” But Family Code expressly states well-established case law that “need” must also be judged in terms of the parties’ station in life during marriage and before separation.
However, a spousal support order must be consistent with the supporting spouse’s ability to pay as determined by his or her circumstances at the time of the support hearing i.e. the obligor’s present (not past or future) circumstances (current income/cash flow, assets, earning capacity, etc.).
Sometimes, one spouse may give up a high paying job to be able to declare an inability to pay spousal support. Whether the act is intentional or not, is a question of fact. However in such a situation, the court can impute a certain level of income to the non-working spouse in the exercise of discretion. In such a situation, multiple and repeated requests might have to be made to obtain spousal support. And that is what makes the divorces expensive and toxic.
Madan Ahluwalia, Esq is a California attorney. He can be reached at (408) 416-3149. His website is www.attorneyonradio.com