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Spousal Support, commonly referred to as Alimony, is monetary support paid monthly by one spouse for the benefit of the other spouse. The court has broad discretion to award any amount of money that is necessary for the support of the recipient spouse as long as the court’s decision is based on the facts and the circumstances existing at the time the award is granted. It can be awarded to either the husband or the wife depending on certain factors discussed below. At the same time, it is not mandatory that the court award any money to a spouse. Please be aware that beginning in January 2005, California law will apply to registered domestic partners.

There are varying types of spousal support ranging from temporary to permanent.

Temporary Spousal Support (Pendente Lite): Temporary Spousal Support is support awarded to either the husband or the wife prior to the dissolution of marriage (divorce). This type of support is given to ensure that one spouse is provided for financially before and during the dissolution proceedings.

Computer Calculation Programs: Courts generally look to see whether certain requirements have been met before issuing an award of temporary spousal support. Courts rely on computer calculations programs that have been certified by the Judicial Council, such as to determine whether or not to grant the award and to determine the amount of the temporary spousal award.

Santa Clara Schedule: A default method for making the calculation employs the Santa Clara Schedule which is 40% of the supporting spouse’s income – 50% of the supported spouse’s income.

Permanent Spousal Support: The court must consider certain factors in making its determination of spousal support:

  • Extent of earning capacity of each party
  • The supported spouse’s marketable skills
  • Extent of supported spouse’s present or future earning capacity that has been diminished by the time devoted to domestic responsibilities
  • Extent of supported spouse’s contribution to the supporting spouse’s education, training, and career development.
  • The supporting spouse’s ability to pay
  • Standard of living during the marriage
  • Debts and assets of each party
  • Duration of the marriage (A marriage of 10 years or longer is considered a long-term marriage and certain rights and responsibilities are imposed.)
  • Ability of the supporting spouse’s to obtain employment without adversely affecting the interests of children in her/his custody
  • The spouses age and health
  • Documented evidence of domestic violence.
  • Tax consequences
  • Balance of hardships of both spouses
  • Criminal conviction of a spouse shall be used to reduce or eliminate spousal support.
  • Any other just and equitable considerations

Modification of Spousal Support: The courts will consider modifying a spousal support order if the supporting spouse can show a significant involuntary change in financial circumstances. The court has said that a change caused by a birth or adoption of a child is considered an involuntary action and thus a modification may be made. However, remarrying or cohabitating is considered a voluntary action and it is not treated as a significant change in circumstances.

Benefits of Life Insurance: Spousal support ceases on the death of the supporting spouse. It is wise to obtain life insurance on the life of the supporting spouse if you are relying on spousal support payments as your sole source of income.

Tax consequences: Spousal Support is taxable as income to the supported spouse and it is a tax deduction for the supporting spouse. In contrast to spousal support child support payments are not treated as income and are not tax deductible. Both support payments can be negotiated in a marital agreement.

© 2004 The Law Offices of Rosanna L. Chenette

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