Spousal Support Attorney – Carlsbad
Types of Spousal Support (Temporary and Permanent)
Temporary Spousal Support
Upon the initiation of a petition for divorce and prior to either a marital settlement agreement or final judgment of divorce, should one party request an order for spousal support, the family court judge will consider issuing such an order if there is a legitimate need for the order considering the circumstances of the parties at the time of separation (the status quo). The court will generally make an order sufficient to ensure that the status quo is maintained such that the supported spouse may continue to live as close to the marital standard as possible as long as the supporting spouse has the ability to contribute.
Permanent Spousal Support
Permanent Spousal Support is the spousal support order made by the court either through the incorporation of a marital settlement agreement or a final judgment of divorce after trial.
Permanent Spousal Support is almost always considerably less than the temporary order especially in cases of short-term marriages and cases wherein a large amount of assets are divided. This is because when making the permanent order, the family law court judge will review a number of factors including the earning ability of the supported spouse.
Duration of Spousal Support Orders
With respect to the duration of a spousal support order, there are two categories of marriage: long term and short term. According to California Divorce Law, a long-term marriage is a marriage that lasts for at least 10 years. A short-term marriage is a marriage that lasts less than ten years. The length of marriage is measured from the date of marriage to the date of separation. The general rule followed by San Diego Divorce Courts is that the duration of spousal support in a short-term marriage should be 1/2 the term of the marriage. So in a situation wherein a couple was together for 5 years, the length of the spousal support obligation should be at most 2.5 years. Keep in mind that this is a guideline and exceptions can be made in rare circumstances.
When it comes to a marriage of long duration, the family law court will not order a termination date for spousal support. The duration is technically indefinite. The supporting spouse, if seeking a reduction or termination in permanent spousal support in a long-term marriage has the affirmative obligation to seek a modification and/or termination of the support obligation or it will never change.
Spousal Support Factors
When considering the proper amount of a permanent spousal support order, a San Diego Family Law Judge must consider what family lawyers call “4320 factors.” The “4320 factors” are a list of 14 factors codified in California Family Code Section 4320.
These factors include considerations of the following: length of the marriage; the health and age of each party; each party’s respective earning capacity considering skills, education, and periods of unemployment due to child rearing; contributions to the education of either party during the marriage; any recorded domestic violence; tax consequences; the needs of each party and the ability of the supporting spouse to contribute toward the support of the other spouse.
The overarching consideration when making an order for spousal support is the consideration that the supported spouse shall become self-supporting within a reasonable time. The court will consider whether or not the party seeking support has taken reasonable measures to become self-supporting.
Permanent Spousal Support orders can be modified. Call now to speak with an experienced Divorce Lawyer to see if your spousal support order can be modified. 858-345-1720
What is the amount of spousal support based on?
In making an order the family court will consider several factors including the earning abilities of each party, the amount of assets and debts each party is assigned upon the divorce, the age, health and education level of each party. Most importantly the court will consider the need of the party requesting spousal support and the ability of the supporting spouse to pay it.
Can I file a motion after my divorce to terminate spousal support?
Yes. Anytime circumstances change you can file a motion to modify or terminate spousal support. It is the responsibility of the party seeking the modification to file a motion absent the written agreement of the parties. If a motion is not filed then the Court lacks jurisdiction to modify spousal support further back from the date the motion is filed. If you are considering requesting a reduction or increase in support the time to act is now.
What if my ex-spouse moves in with someone else?
California law provides that a supported spouse cohabiting with a member of the opposite sex has a presumed decrease in the need for financial support from his/her ex-spouse. However, the burden is first placed on the payer of spousal support to establish that the cohabitation is with a romantic mate.