Spousal Support in California

Written by: Michael Anthony Turek

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Payment to an ex-spouse after a divorce (and while a divorce is pending) is called spousal support. Here are some common questions and answers about spousal support in California.

When is spousal support payment required?

If one spouse earns substantially more than the other, the higher earner will be required to pay spousal support. If the two spouses earn roughly equal incomes, then the court may decide no support is owed by either party. It may still be worth asking for support even in this situation, however. Why? The judge has discretion to award support, and various factors may justify doing so, such as the age and health of the parties, or if one spouse helped the other through school during the marriage. If either spouse is earning less than his or her earning capacity, the court may take that into account and compute support based on earning capacity rather than the actual income. This is called imputing income.

How long does support have to be paid?

If the marriage lasted less than 10 years, support is generally paid for half the length of the marriage. No clear rule exists for marriages that lasted more than 10 years, but often the order made at the time of the divorce will be indefinite, meaning that support will be paid until the court later terminates it. Note that time spent as a couple prior to marriage does not count toward the length of the marriage, even if the parties lived together.

The spouse paying support should try to avoid an indefinite order because it can be difficult to terminate support under an indefinite order. One way for the paying spouse to avoid this problem is to have the original order set a tentative end date for support, with the proviso that the recipient can ask the court to extend it if necessary.

How much must be paid?

In California, spousal support may be ordered while the divorce is pending. This is known as temporary support. Temporary support is typically calculated based on a formula, using the same software that calculates child support. By contrast, permanent support ordered at the end of a divorce is not based on a computer calculation, but is fully within the judge's discretion to determine on a case-by-case basis. Normally, the amount of permanent support is less than the amount of temporary support.

How do you request spousal support?

The initial petition for dissolution, which begins a divorce case, provides an option to request spousal support, as does the response to the petition.

To request temporary support, a party files an Order to Show Cause, or else a Motion, seeking spousal support. Often, this raises issues not only of spousal support but also child support, child custody, and attorney fees.

Can the amount and duration of support be modified?

The amount and duration of spousal support can be modified at any time based on a change of circumstances. For example, if a paying spouse loses a job or has a decrease in income, then he or she can file an Order to Show Cause and ask the court to reduce the support. The court may also reduce or terminate support if the recipient remarries or moves in with a new mate. The income of a paying spouse's new mate cannot be considered as a factor in modifying support.

Taxes and spousal support

Unlike child support, spousal support is taxable income to the recipient and deductible to the payer. However, the parties may agree that support payments will not be taxable to the recipient, in which case the payer cannot deduct it.