respective expenses will be paid. If either does not have sufficient income or other resources to cover
their expenses, that spouse may have the ability to ask to receive spousal support (sometimes called alimony) to offset the deficit.
How is the amount determined?
One method would be to focus on both spouses’ expenses.
Decide what expenses categories will be viewed as necessities and create budgets that include those
items. Then add to the budget discretionary categories to be paid if there is enough income. Next,
calculate the net spendable (post tax) dollars available to pay the budgets. If there is consensus it will to
be shared in some manner, discuss how much and for what period of time.
Another method could be an income based focus.
Income based means that each spouse will receive a percentage of the combined after tax income.
What if an agreement about the amount isn’t reached?
If support is being sought for the time period preceding the final divorce judgment, in California there is a court approved computer program that calculates the amount using income and deductions as the input.
If there is a request for post-divorce decree support there is no approved formula. Instead, a court is required to balance multiple (14) factors that are specified in Family Code Section 4320, the concluding of which is “any other factors the
court determines are just and equitable”, to make an order for spousal support. The factors include
earning capacity, the ability to pay, both spouses’ needs “based on the standard of living established
during the marriage”, each spouses’ obligations and assets, age, health and the duration of the
marriage.
How long will support be paid?
There is a legislative goal that the supported spouse become self-supporting. If the length of the marriage is not viewed to be of long duration, generally less than 10 years, support may be paid for one half the length of the marriage but the court has authority to reduce or extend this time period based on the other Section 4320 factors. With longer term marriages, the
court generally retains the ability to order spousal support.
Support will terminate if the supported spouse remarries, or either spouse dies. Spouses can also agree to a termination date.
Can the support amount be changed?
Yes, as long as the amount and duration are not expressly agreed to be non-modifiable. Amounts can change automatically after specified passages of time, or reviewed on certain dates. Continued receipt of support can be predicated on steps the supported spouse must take to earn income. If the support agreement or order does not include these types of provisions, the spouse requesting the change must show that current circumstances are different from those existing at
the time of the original order. Given the wide discretion a court has when asked to make a spousal support order, using a
consensual dispute resolution process (such as Collaborative Divorce) to obtain a mutually agreeable solution should be what divorcing spouses endeavor to accomplish in their divorce process.
Susan Stephen Coats is an attorney and mediator in San Francisco and Marin County.
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