Spousal Support and Alimony mean the same exact thing. When a couple divorces or legally separates,
the court can order one spouse to pay the other a certain amount of money each month for the purpose of
supporting the former spouse; this is called spousal support or alimony. In California, the family courts
use the term spousal support exclusively. Spousal support is usually one of the most contentious and
high-conflict issues in a divorce case, making it extremely important to understand how the issue of
spousal support is addressed under California law.
Is Spousal Support Always Permanent?
There are two different types of spousal support in California; temporary spousal support and permanent
spousal support. Temporary spousal support and permanent spousal support are each governed by
different standards and California Family Code sections. This makes a temporary spousal support order,
and how it is determined, distinctive from a permanent spousal support order.
In short, during a dissolution case, the higher earning spouse may be ordered to pay temporary spousal
support to the lower earning spouse during the time that the divorce is pending and when there has yet to
be a final judgment of dissolution entered. Permanent spousal support is support paid after the final
judgment in the case, and it does not necessarily continue on a permanent basis. In most cases, spousal
support is tax deductible for the paying spouse and taxable income for the supported spouse. The spouse
that receives alimony will pay federal and state income taxes on it, and the spouse making alimony
payments will be entitled to a tax deduction. In order for spousal support to be legally established and
officially start, there must be an open court case.
Temporary spousal support is governed by California Family Code Section 3600. The law requires that
the court’s analysis consider the financial needs of each party as well the higher earning spouse’s ability
to pay spousal support. The goal of temporary spousal support is to maintain the marital “status quo”
between the parties while the divorce is pending. Temporary spousal support orders are typically made
after a hearing when one party files a Request for Order requesting spousal support or by mutual
agreement of the parties.
Just like child support, the court will utilize the Dissomaster computer program to calculate “guideline”
temporary spousal support, although the judge can still deviate from this amount in certain situations. In
San Diego, the superior courts have informally adopted the Santa Clara “guideline” spousal support
formula to assist in the determination of temporary spousal support awards. In order to calculate
guideline spousal support, the judge will input the parties’ financial information and other factors into the
Dissomaster program.
Remember! The court can make the spousal support order retroactive to the date of filing the Petition for
Dissolution of Marriage, but will often only go back to the date the Request for Order was filed.
Permanent spousal support is governed by California Family Code Section 4320. Although commonly
referred to as “permanent,” in the vast majority of cases the spousal support order can be modified in the
future. Some orders may have a future termination date too. The court has very wide discretion in setting
permanent spousal support orders. Please note that the court cannot use the Dissomaster calculation to
arrive at a permanent spousal support order number, unlike a temporary order. However, the court does
routinely look at the Dissomaster calculation to compare the net spendable money of each party after
support is paid when setting the permanent spousal support order number.
What Factors Decide Child Support Amounts?
There are numerous factors the court must consider when setting permanent spousal support. Due to the
seemingly infinite amount of factors, it can be very difficult to determine or predict what the permanent
spousal support order will be. These factors the court weighs include all of the following:
The income, or earning capacity, of each party.
The court must consider what each spouse can earn to keep a standard of living close to
what they each had during the marriage. The court will consider the earning capacity of a
party as well as the results of a vocational evaluation if necessary or ordered. Generally,
if a spouse has been out of work for a substantial period of time and it is unclear what
that spouse could earn currently, it is advisable to have an expert interview and write an
expert report related to such information. This is what a vocational evaluation is.
The court has two options if a party has a variable income.
First, the court can “annualize” the variable income to an average amount. Second, the court can employ
the “Smith-Ostler” formula that takes a certain percentage of gross variable income for
which the party receiving such money must pay in spousal support to the other party.
- The marital standard of living;
- The marketable job skills of each party, or the time and cost necessary for a supported party to
- undergo job training or education to develop the necessary skills;
- The extent that the supported party’s present or future earning capacity is impaired by periods of
- unemployment during marriage devoted to domestic duties;
- The extent to which the supported party contributed to the supporting party’s education, training,
- or career enhancement;
- The supporting party’s ability to pay support;
- The needs of the supported party compared with the marital standard of living;
- The assets and debts of each respective party;
- The length of the marriage; The duration of spousal support is often directly linked to the length of the marriage.
There are two “types” of marriages for spousal support purposes; short-term and long-
term. A short-term marriage is defined as a marriage of less than 10 years whereas a
long-term marriage is defined as a marriage of 10 years OR MORE in length. In a short-
term marriage, spousal support typically terminates at one-half of the length of the
marriage. In a long-term marriage, there is not a standard for the duration of spousal
support. Instead, the court will reserve jurisdiction over spousal support for an indefinite
period of time. This means that the court will not automatically set a termination date for
permanent spousal support. If either party wants to modify or terminate the permanent
spousal support order, they will have to file a Request for Order to do so. However,
spousal support will almost always terminate if either party dies or if the supported
spouse remarries.
Remember! The “length of marriage” is measured from the date of marriage to the date
of separation. There can be a difference of opinion between the parties as to the date of
separation, which is usually a factual determination decided by the trial court. For more
information, please see the Date of Separation page (link).
The ability of the supported party to work without interfering with caring for minor children in
their care;
- The health of the parties;
- The age of the parties;
- Documented domestic violence;
The court must take into account documented evidence of any history of domestic
violence between the parties. When the supporting spouse is the abusive person, the
judge will consider any emotional distress resulting from the violence suffered by the
supported spouse.
The court will also consider any history of domestic violence at the hands of the
supported spouse against the supporting spouse.
There is a rebuttable presumption against giving spousal support to an abusive spouse
who has a CRIMINAL CONVICTION for domestic violence against the other spouse.
- The tax consequences of the support order to both parties;
- The balance of the hardships between the parties;
- The goal that a supported party should be self-supporting within a reasonable period of time;
The court will almost always enter a “Gavron” warning. This tells each party that they
must make reasonable efforts to assist in providing for their own support needs.
Another tactic the courts use is implementing a “step-down” order. These are orders that
automatically reduce the spousal support amount over periods of time. This can be every
month, every year, every two years, every five years, or any other schedule until the
amount of spousal support to be paid reaches zero.
Child Support Modifications
As previously stated, the majority of spousal support orders are modifiable in the future. Generally,
spousal support orders are modifiable when there is a CHANGE IN CIRCUMSTANCES. The change in
circumstance may be significant or minor. The more significant the change, the more likely it will be for
the court to modify the judgment or order. Also, if a party fails to meet the requirements contained within
a dissolution judgment, it may be grounds for modifying the spousal support order. An example of this
situation would be when the supported spouse is not making a good faith effort to become self-supporting
per the Gavron warning.
Remember! Some dissolution judgments make permanent spousal support NON-MODIFIABLE. If the
parties agree to an order or judgment for spousal support that is irrevocable and non-modifiable, the
courts will not have the power, or jurisdiction, to modify the order.
What if my Circumstances Change?
In the event of a change in circumstances, it is important to file for a modification of the spousal support
order as soon as possible. This is because spousal support can only be modified retroactively to the date
that the Request for Order to modify the spousal support is filed. Parties will sometimes wait to file their
motion to modify for a variety of reasons such as thinking their job loss is only temporary or the other
party has verbally agreed to receiving less than the current court ordered amount. This can turn out to be
costly mistake. Without a NEW court order signed by the court, the existing spousal support amount and
order will not be changed.
If the supporting spouse falls behind in spousal support payments, the law states they must pay 10%
interest per year on the balance due. This is called owing arrears, another name for past-due spousal
support. Not paying the spousal support the court ordered can have very serious consequences. If the
court finds that a party has the ability to pay spousal support but is willfully not paying it, the party can be
found in contempt of court. Being in contempt of court can be very serious because the party can face
criminal consequences such as time in jail and fines.
Remember! If the case includes a child support order, either party can have the Department of Child
Support Services (DCSS) help enforce and collect the spousal support order along with the child support
order. DCSS will NOT become involved unless there is a child support element to the case.
Call Pacific Beach child support attorney Steven Kampf today if you have any other questions.