Spousal Support Explained
Divorcing spouses I work with are always concerned about spousal support, especially be
cause neither party usually has a good grasp on how spousal support works. The article below will aim to provide some general information related to spousal support, how it’s calculated, and how I handle the process in mediation.
The purpose of spousal support is to provide the lower earning spouse with enough income to continue living a lifestyle similarly situated to the one they were accustomed to while they were married.
There are two kinds of spousal support, (1) temporary spousal support and (2) long-term/permanent spousal support. Temporary support is spousal support that the lower earning spouse can receive from the time they are separated to the time they are officially divorce. Long term aka permanent support is spousal support that is received after the parties are officially divorced.
To put it simply, judges determine spousal support based on the (1) needs of the lower earner and (2) ability to pay for the higher earner. The most well-known formula judges consider when awarding temporary monthly support is [40% of the higher earner’s net monthly income – 50% of the lower earner’s net monthly income = monthly temporary support]. Some courts may use this formula or a variation of this formula, so it’s not the end all, be all rule for determination of temporary support. In fact, this calculation is just a starting point which may vary depending on your situation (ex. large savings accounts, medical circumstances, etc.).
Long term support isn’t so simple. The first thing to consider with long term support is whether the marriage lasted less than or more than 10 years. If the marriage lasted less than 10 years, then spousal support may only be awarded for a period of time half the length of the time the parties were married (ex. married for 4 years, long term spousal support will go for a maximum of 2 years). If the marriage lasted over 10 years, the door is wide open on how long spousal support will be paid for and could last for as long as one spouse needs support. Support will always end when either; the parties have agreed in advance on a date that support will end and the court signs off on that agreement, the court orders it to end, the supported spouse remarries, or either spouse dies. When determining long term support, judges consider a list of about 15 factors that lawyers make entire careers arguing over which can be found in the CA Family Code §4230. As far as the monetary amount of long-term support goes, most lawyers will strongly consider settling at around 80% of whatever the temporary support formula would provide.
In Mediation, before I jump into legal explanations and how the law may or may not be applied, I ask my clients to strongly consider the needs of the lower earner and ability to pay for the higher earner. I have all of my clients fill out an income and expense sheet which tells me what their monthly expenses look like. If we want to confirm the accuracy of the income and expense sheet, I ask the parties to provide statements corroborating what their monthly expenses currently look like which we can then use to project their future expenses. The incomes of both parties are determined by looking at their tax statements and pay-stubs. Once the clients are in the right mindset and understand the circumstances, the conversation surrounding spousal support becomes clearer and more concise. Between the conversations of (1) needs and ability to pay and (2) guideline formulas, my clients are usually able to reach an agreement.