California law provides for the Court to utilize the factors set forth in Family Code Section 4320 when considering spousal support. Another word, though not currently really used, for spousal support is “alimony.” Spousal support is taxable to the receiving party, and tax deductible to the paying party.
Spousal support is also based on the gross incomes of the parties, however, Family Code Section 4320 also takes into consideration other factors, such as the duration of the marriage; the age and health of the parties; the education of the parties; the ability of a party to earn an income; the need for education or training; the needs of the parties, to include their assets and debts, both community and separate; and the standard of living during the marriage.
Generally a marriage of short duration is less than ten years, and a marriage of long duration is over ten years. In a marriage of long duration, the Court has the discretion, based on the factors, to make an order that spousal support be payable until the death of either party, the remarriage of the receiving party, or further order of the Court. It is the goal of the Court that the receiving party make an effort to become self-supporting. Usually, if the marriage is less than ten years, spousal support would not be ordered for more than one-half the length of the duration of the marriage.
Typically, temporary spousal support is awarded in a higher amount than permanent spousal support. A spousal support order is most times only retroactive to the date of a properly filed request for the Court to order such relief.
Family Code Section 4320 lists the factors the court is required to consider when making an award of spousal support. Those factors are as follows:
- The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
- The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.
- The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
- The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.
- The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.
- The needs of each party based on the standard of living established during the marriage.
- The obligations and assets, including the separate property, of each party.
- The duration of the marriage.
- The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
- The age and health of the parties.
- Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.
- The immediate and specific tax consequences to each party.
- The balance of the hardships to each party.
- The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Family Code § 4336, a ‘reasonable period of time’ for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.
- The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with [Fam. Code §4325.
- Any other factors the court determines are just and equitable.
Family Code § 3653 states in pertinent part:
- An order modifying or terminating a support order may be made retroactive to the date of the filing of the notice of motion or order to show cause to modify or terminate, or to any subsequent date, except as provided in subdivision (b) or by federal law (42 U.S.C. §666 (a)(9)).
- If an order decreasing or terminating a support order is entered retroactively pursuant to this section, the support obligor may be entitled to, and the support obligee may be ordered to repay, according to the terms specified in the order, any amounts previously paid by the support obligor pursuant to the prior order that are in excess of the amounts due pursuant to the retroactive order. The court may order that the repayment by the support obligee shall be made over any period of time and in any manner, including, but not limited to, by an offset against future support payments or wage assignment, as the court deems just and reasonable. In determining whether to order a repayment, and in establishing the terms of repayment, the court shall consider all of the following factors:
- The amount to be repaid.
- The duration of the support order prior to modification or termination.
- The financial impact on the support obligee of any particular method of repayment such as an offset against future support payments or wage assignment.
- Any other facts or circumstances that the court deems relevant.
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