Spousal support is a term used by family law courts to describe a sum of money paid from one party to the other after divorce to support the recipient’s “accustomed lifestyle” up to a certain point.
For example, spousal support would help an ex-spouse who was typically home with the children or who had a part-time job so s/he can pay general living expenses in their new home. However, it is not intended to accommodate luxury items for the average Bay Area divorcee.
Spousal support vs alimony, the terms are often used interchangeably, but the way they are decided upon, upheld by the courts, and terminated are the same.
Spousal Support vs Alimony: What’s The Difference?
The terms are the same. Alimony is an “old-fashioned” way to describe spousal support. It goes back to when women predominantly stayed home without working or a means of income, while men brought home the paycheck. As a result, during a divorce, the courts decided on a set amount of money an ex-husband paid to the wife every month (separate from child support) until a specified amount of time.
Back when we referred to it as alimony, payment duration was usually set until the wife remarried, OR the ex-husband went back to the courts to ask for a modification or termination. Today, we refer to this monthly payment as “spousal support” because it may be paid from either partner to the other during the separation, divorce proceedings, and beyond. Usually, the one who makes the most money each month is the one left paying spousal support if that’s what the courts decide.
After over 40 years of experience with divorces and family law, I can assure you that working with a divorce mediator is the best way to avoid paying spousal support, minimize the spousal support amount, or come up with the most reasonable length of time to terminate the payments. Read Could Your Divorce Benefit From Mediation to learn more about that.
How Is Spousal Support Determined?
One benefit of divorce mediation is that you can set your spousal support agreement without involving the courts. Sometimes, the .gov spousal support and child support calculators spit out figures that simply aren’t realistic. A realistic compromise is the best alternative, and agreeing in a family law mediator’s office is far more affordable than paying to have the judge decide.
If you do take your divorce into the courtroom, the judge considers multiple factors. Some of the most critical include:
Earning potential of both parties
If you have a viable degree, certification(s), experience, and skillsets that are still relevant in the current job market, the judge is less likely to award spousal support. Or, they’re likely to award a smaller amount for a reasonable amount of time, expecting you to re-enter the workforce once you are settled.
Note: If you own a business, I highly recommend seeking pre-divorce counseling with a family law attorney before beginning the divorce proceedings. You don’t want to risk losing your business as a result of its asset value when the judge is evaluating each party’s individual worth or income potential.
Child support obligations
If one party pays child support, the courts subtract that amount from their net income and then factor the spousal support into the equation. This is one reason why spousal support payments are fading fast for California’s middle class. Many people simply cannot pay more than the child support they’re already paying while still maintaining a decent standard of living, which may drastically reduce or eliminate their need to pay spousal support.
If children are involved in the divorce, consider seeking child custody mediation to support the emotional wellbeing of your children at all costs. I also recommend reading, The Biggest Child Support Mistakes to Avoid.
A sufficient standard of living
Suppose the earning differential between the two of you is marginal. In that case, you will both have the same “standard of living” (more or less) after the divorce because California is a community property state, and communal assets are divided equally. If, however, there is a significant income discrepancy, the judge may award a larger alimony settlement to support the less-earning spouse for a certain amount of time.
An individual’s ability to pay spousal support
Again, this is largely determined by income discrepancy between both parties. If the higher-earning party can barely pay reasonable living expenses, the judge may not award much spousal support at all. For example, if the higher-income earning party rents a two-bedroom apartment in the Bay Area and has 50% custody of the children, the judge would rarely award a spousal support payment that would compromise basic the payor’s living standards.
Similarly, if you’ve recently lost your job, changed your job, or experienced a decrease in earnings, you should file spousal support (alimony) modification ASAP to lower or cease payments.
The duration of the marriage
Spousal support payments also reflect the length of the marriage, including the number of years a payor has to make the payments. Typically, the rule of thumb is that the person who has to pay spousal support must do so for one-half the length of the marriage (often up to 10 years).
A history of abuse
If there is a documented history of physical or emotional abuse, the judge will consider that. Victims of domestic abuse, both verbal and physical, can have a harder time re-entering society as an independent income earner, leading to larger spousal support payments or payments made for a more extended period than average.
Age and health of both parties
While algorithms and calculators can give a black-and-white perspective as to who owes what, most judges honor personal stories as well. A person’s age, retirement, and health conditions may also factor in how the judge decides.
Click Here to read the California Family Law code for specifics pertaining to the criteria used to determine spousal support.
Are you worried you can’t afford to pay spousal support for an upcoming divorce? Are you currently paying spousal support vs alimony even though you can’t afford it? Contact the Law Offices of Gerard A. Falzone. I can support you in various ways, ranging from pre-divorce legal counseling, mediation, or helping you file for spousal support or child support modifications.