Written by attorney Michael Charles Schwerin



LENGTH OF MARRIAGE – Marriages of ten years or less are considered marriages of short duration. Marriages of ten years or more are considered marriages of long duration.

LENGTH OF SUPPORT – The general rule is that for marriages of short duration, spousal support will last for ½ the length of the marriage and for marriages of long duration, spousal support is indefinite. In some circumstances, the court could order shorter or longer periods of time.


Temporary Spousal Support – Temporary spousal support is the spousal support that the court will order when a divorce or separation case first begins. Generally the party with the lower income files a Motion or an Order to Show Cause (OSC) for Spousal Support (and probably other things) and sets a hearing. Along with the Motion or OSC, the party is required to complete and file an Income and Expense Declaration and attach pay stubs for the prior 2 months. Once the other party is served, they have to serve their Response and Income and Expense Declaration prior to the hearing. These are the documents used to calculate temporary spousal support. The court uses the Dissomaster computer program (or a similar program), inputs information regarding the income of the parties, their tax status, employment related expense information, health insurance information, property tax, mortgage interest, and other income tax related information. The program pops out the amount of support. This is the fast and dirty method of calculating temporary spousal support.

Permanent Spousal Support – Permanent spousal support is a bird of another color. Permanent spousal support is based on all of the factors contained in Family Code Section 4320. Permanent spousal support may be higher or lower than temporary spousal support after all of the factors have been considered.

Family Code Section 4320 reads as follows:

In ordering spousal support under this part, the court shall consider all of the following circumstances:

(a) The extent to which the earning capacity of each party issufficient to maintain the standard of living established during the marriage, taking into account all of the following:

(1) 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.

(2) 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.

(b) 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.

(c) 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.

(d) The needs of each party based on the standard of living established during the marriage.

(e) The obligations and assets, including the separate property, of each party.

(f) The duration of the marriage.

(g) 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.

(h) The age and health of the parties.

(i) 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.

(j) The immediate and specific tax consequences to each party.

(k) The balance of the hardships to each party.

(l) 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 Section 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.

(m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4325.

(n) Any other factors the court determines are just and equitable.

Permanent spousal support is usually set at the end of the case, after a trial or hearing on the issue. All of the relevant factors listed above are considered. Some are easily ascertained and others take a lot of work to figure out: for example the standard of living of the parties during the marriage.

The key point about permanent spousal support is that it is 100% negotiable. You can negotiate for a higher amount for a shorter period of time, a lesser amount for a longer period of time, a buy-out of the right collect spousal support, and a exchange of assets or debts for the right to collect spousal support. Almost anything you can think of can be negotiated in this area (as opposed to child support which in general cannot be negotiated below the guideline amount absent special circumstances).

TAXABILITY OF SPOUSAL SUPPORT– Spousal support is deductible from the taxable income of the paying party and includible in the taxable income of the supported party. You can see this on the Federal Form 1040 Income Tax Return at lines 11 and 31a. The social security number of the supported party will have to be included on the paying party’s return.

prepared by Michael Schwerin, Schwerin & Sumcad, San Jose CA 95113 6/19/2012

(408) 295-4232

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