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Calculating Spousal Support on Divorce

When our clients come to us with questions about spousal support (or “alimony”) whether in contemplation of a prenuptial agreement, a post-nuptial agreement, or divorce, they are often fearful of its uncertainty.  Common concerns run from “will my spouse/partner take everything I have?” to “what if I can’t support myself after our marriage?”  While there are no simple answers to these questions, and determination of spousal support varies greatly between couples, California has a set of guiding principles that help parties, and the court, determine spousal support in the event that couples cannot reach an agreement.

For temporary spousal or partner support, many courts use a formula to calculate payments, and those formulas vary from county to county.  To determine ongoing spousal support after a divorce is finalized, there is no concrete formula.  The court must consider factors set forth in California Family Code Section 4320.  These factors include, among others, the length of marriage, each person’s earning capacity, the age and health of the parties, whether there are children, the assets of each party upon divorce, and even the tax impact of an award of support.

Each factor under Section 4320 requires further analysis by the court based on the evidence brought by each spouse or partner.  For example, a determination of earning capacity includes examination of each person’s marketable skills, the amount of time and cost for a person to acquire education or training necessary to develop skills, and whether the ability to earn income was impaired during the marriage due to periods of unemployment and devotion to domestic duties (e.g. spending time away from the workforce to care for children).  Similarly, in looking at the length of a marriage, the court has the discretion to award spousal support to allow a person a “reasonable period of time” to be able to support himself or herself.  While this typically means a determination of spousal support lasting for at least half the length of the marriage, it is within the court’s power to adjust the length of time someone receives spousal support.  We have the ability to run numbers for you taking into account all of the above considerations.

If the couple agrees on the terms of spousal support, even if it is waived by mutual agreement, the court will uphold the agreement as long as it meets certain legal requirements.  Working out the terms with your spouse or partner can be difficult, especially during the emotional period of divorce.  We can help clients understand their options and guide them through the process to alleviate their uncertainty.

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