Spousal Support

…is something that the court does not award automatically but upon filing the so-called Request For Order (RFO).

Spousal support is based on the length of the marriage. For example, if the couple was married less than 10 years then the spousal support length is considered based on the length of marriage. So, less than 10 years is considered a short-term marriage and more than 10 years is a long-term marriage. So, if the marriage was less than 10 years then the spousal support is calculated for half of the length of the marriage, which would mean for five years.  If the marriage was over 10 years, then the spousal support is to be calculated indefinitely.

So, now, let's say you have date of marriage and a date of separation, and the marriage is eight years.  As we have established this marriage would be considered short term and the length of spousal support would be four years. Then, one spouse goes and files for divorce and gets a case number and then the petition needs to be served so that the court has jurisdiction.  To recap, we have an eight yearlong marriage which we determined by looking at the date of marriage and the date of separation. That's how we determine the timeframe of the number of years you have been married. The timeframe is not calculable from when you filed, but from when the date of separation is.

What is the date of separation? Date of separation has been appealed and talked about many times, but the point is, date of separation occurs where one spouse decides, “I don't wanna come back, this marriage is no longer reconcilable, I'm moving out.” However, recently moving out is not the deciding factor anymore but the totality of circumstances is. This means that the court will consider when one spouse for sure decides to not come back to the marriage as the date of separation.

So, we established the date of marriage and date of separation as being eight years. We know that the court has jurisdiction because the petition for divorce has been served, therefore, we have a case. So, then time passes and the spouse who needs support needs to file a request for order (RFO) for spousal support. Then the hearing is given about a month in advance.

During the time when the divorce is pending clients will ask me, "Well, how long do you think my divorce is going to be pending?" It depends on the case. If it’s an uncontested case, it will probably take about six months on average. If it’s a contested case it can take on average at least nine months and sometimes it's even longer.

Divorce begins pending starting the date of filing and continues during service and the whole process of asking for spousal support, child support, and property division.  The case might even end up in trial and with temporary spousal support. The judge can award temporary spousal support until the divorce is final or until the judge determines the number at the actual trial date. Then, permanent support is issued after the divorce is final or after the judge decides in trial what the amount and length is should be. In our case, if the marriage is eight years and the divorce process took 12 months then permanent support may be considered which will be the remaining of three years. One of the questions that comes up most of the time is:

What is the number? How much in spousal support would I pay? There are two types of calculations.

• One is based on percentage of income that looks at, let's say pay slips and if the party is self-employed, scheduled tax returns. Sometimes the court will look at the last two years of tax returns if either of the parties are self-employment.
• Then the court calculates spousal support based on the DissoMaster calculator. Well, the court has the DissoMaster calculator because calculating spousal support is a somewhat   complex formula. If the DissoMaster calculator is based on California law and it says that temporary spousal support is awarded in the amount of 40% of the net income of the paying party, then that 40% has to be deducted for child support. So, let's say we don't have children in our case so spousal support would be calculated at 40% of the net income of the paying party and if the receiving party has zero income, then we have our number 40%. If the receiving party does have income, then we are looking at 40% of the net income of the paying party minus 50% of the net income of the receiving party. That's the formula.

What is the formula for permanent support? The permanent support formula depends on the so-called 4320 factors. 4320 is a family code section with 20 factors that you can look up on Google.  To sum it up in three factors it would be: standard of living during the marriage, need of the receiving party, and the ability to pay of the paying party.  Let's say we've established using the DissoMaster calculator that the parties were married eight years and the paying party was earning about $100,000 during the marriage and the receiving party was earning zero. Then after the date of separation the paying party started to receive a million dollars in income– Let's assume this just for the purposes of this conversation. In calculating the DissoMaster, the million-dollar income would go into consideration but not for permanent spousal support. Why? We established that during the marriage and during the eight years that the parties were married the paying party had been earning only $100,000, this means that the standard of living was never a million dollars. Therefore, the number for spousal support will be way lower. Usually, this type of example is very extreme, in most cases the numbers are quite similar.