Chapter Ten: How Is The Amount Of Spousal Support Determined And How Long Will It Last?

Another common question is how much spousal support will I have to pay or how much spousal support will I receive. This is also integrated, in the response, into the procedural posture. For temporary spousal support orders [pre judgment], my experience is that the Judges in San Diego use the same program {Disso Master} for the calculation. For permanent support orders, the Judge’s use [primarily] two Family Law Codes: 4320 and 4336 to base their decisions in my experience again.

These codes are not listed in their entirety however important factors have been “lifted” from the Code for your educational purposes. This is a very complicated area of the law and the Judge’s have wide discretion in both temporary and permanent spousal support orders. Below is a specific list of the factors which the San Diego Judge’s consider in permanent spousal support so that your strategies and techniques [whether payor or payee] will be consistent with your goals.

In ordering spousal support, the court shall consider the following circumstances: the extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following: 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. In addition, the Court takes into account the following as to 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, 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 and 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. Furthermore, the Court takes into account the needs of each party based on the standard of living established during the marriage as well as the he obligations and assets, including the separate property, of each party.

The duration of the marriage of the marriage is a very important consideration since a marriage of more than ten [10] years is considered a “long term marriage” and the presumption is that there is indefinite jurisdiction to award spousal support and not one half the length of the marriage. This rule applies to cases in divorce or legal separation proceeding filed on or after January 1, 1988 so this is 99.9% of the cases now in Court. In addition, the Court takes into account 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 as well as the age and health of the parties.

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 is an extremely important consideration the Judge’s take into account. A documented history of domestic violence would allow the Judge to set a spousal support award at $0 when no such history may result in a spousal support award. The operative words, of course, are “documented evidence” and this is one reason of many why it is so important to have evidence submitted and not merely your position. The Judge does not know what is inside your mind or what the truth is and rules on evidence submitted in accordance with the law. As such, this submission of evidence is a crucial component of any family law case. The Judge also will take into account the immediate and specific tax consequences to each party and will balance the hardships to each party.

As to the time period, or duration of the order, the Judges also consider the goal that the supported party shall be self-supporting within a reasonable period of time and, except in the case of a marriage of long duration as described in Section 4336, a "reasonable period of time" this generally shall be one-half the length of the marriage. Ultimately, for spousal support, the Judge has wide discretion both for duration and amount as one of the final provisions is that 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 as well as any other factors the court determines are just and equitable.

>> Chapter Eleven: How Can I Get Information If I Think The Other Party Is Lying?

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