Often in San Diego divorces, both spouses are unable to maintain the same lifestyle they enjoyed while living together. The lifestyle of the parties during marriage is called the marital standard of living. The financial reality of divorce is that it is more expensive to sustain two separate households than it is to sustain one. Thus, divorce can lead to an adjustment in spending, entertainment and square footage.

Spousal support is a tool used by Family Courts to attempt to equalize the living situation of both spouses. This is especially true if one spouse forgoes the opportunity to work for many years in order to take care of his or her children. If one spouse is the breadwinner and the other maintains the home and the children, upon divorce, the breadwinner will be able to support the same lifestyle but this would leave the non-working spouse with no ability to support him or herself and the children. Thus, the court will order the breadwinner to pay support to the non-working spouse in order for both to maintain similar standards of living post-separation.

Spousal support is calculated, on a temporary basis, using a guideline formula. The formula requires lawyers and judges to input both spouses “income” that is available for support. For a W-2 employee, this calculation is basic. The only factor to consider when determining income available for support is the gross wages from the spouse’s tax return or year-end form W-2. Some spouses however, have attempted to artificially deflate this income available for support by taking a reduction in salary and instead receiving housing or car allowance perks from their employer. If the court recognizes an attempt to artificially deflate income, it may impute the value of perks received by the spouse as additional income available for support.

Throughout Del Mar and San Diego County, many divorcing parties are unclear about the concept of “alimony.” In California, the Family Codes and courts use the term “spousal support” instead of “alimony” to reference payments made from one spouse/former spouse to another for his or her financial support. Most parties are aware of the fact that once the divorce is over the court can order one party to pay the other spousal support. However, considering that the divorce process can take years for some litigants, many parties are unsure of what they should do in the mean time.

Temporary Spousal Support: Under the California Family Code, San Diego courts have the authority to make temporary spousal support awards. These awards are called “temporary” because they last only until the divorce is finalized. The purpose of a temporary spousal support award is to maintain the status quo until the time of trial and is intended to be a short-term solution. Based on the limited funds of the parties, it may be impossible for both to maintain the status quo of the marriage. Thus, in this situation, the judge will make an award as close to the status quo as possible. The quick and expedient method of calculating temporary spousal support is called the “guideline” formula. In order to determine guideline support, the judge will input various factors such as the incomes of the parties, tax filing status of the parties and any tax deductions and the formula will produce a guideline amount of support. However, the actual support awarded is within the family court judge’s broad discretion.

Permanent Spousal Support: “Permanent” spousal support is a misnomer. Often, even in long-term marriages, spousal support is not automatically “permanent.” Permanent spousal support simply refers to the spousal support award made at the conclusion of the divorce proceedings (as opposed to temporary support). In order to set permanent spousal support, the court is not permitted to simply use the guideline formula to come up with an amount. Instead, the family court judge will consider all of the factors listed under California Family Code section 4320. These factors include but are not limited to: the paying spouse’s ability to pay, needs of the parties based on the marital standard of living, health of the parties, the obligations and assets of both parties, the tax consequences of support, and any documented evidence of domestic violence. Additionally, the court may consider “any other factors” which would produce a “just and reasonable” result.

Many Del Mar divorcés have unanswered questions following the termination of divorce proceedings. The court may make many orders regarding child support, spousal support and property division. While the duration and purpose of child support is clear, many ex-spouses are left wondering how long spousal support should continue. The primary purpose behind an award of spousal support is to ensure that the supported spouse has adequate income for his or her basic needs and provide a lifestyle as consistent as possible to the one enjoyed during marriage. Spousal support is determined upon consideration of a number of factors, primarily the need of the supported spouse and the other’s ability to pay.

There are two types of spousal support awarded by the court, temporary support and permanent support; however, the terminology is misleading. Temporary support is awarded during the interim period between when the divorce is filed and final. Permanent support is ordered at the conclusion of the case and in fact is not intended to be permanent. If a marriage lasts fewer than ten years, usually spousal support is ordered for half of the length of the marriage. If the duration of the marriage was ten years or longer, there is no general rule of thumb for the termination of spousal support.

The paying spouse however does not have an absolute duty to provide indefinite support. The Gavron warning is a fair warning given to a spouse who has been awarded spousal support that he or she is expected to become self-supporting within a reasonable time. The “reasonable time” element is highly subjective and within the great discretion of the court. Generally, the intent behind the warning is to encourage the spouse to become financially independent by seeking employment or another source of income. The Gavron warning was codified in California Family Code section 4330(b), “when making an order for spousal support, the court may advise the recipient of support that he or she should make reasonable efforts to assist in providing for his or her support needs…unless the court decides this warning is inadvisable.”

In San Diego, many courts award spousal support in various family law hearings. A new survey has sparked a family law debate, who pays alimony more often – men or women? The new survey indicates that more women are paying alimony than ever before. However many practicing attorneys argue that, although women pay support in a few cases, men still are responsible for the majority of support payments.Alimony, more commonly known as spousal support in family law, is set by a judge or agreed upon by the parties in many family law cases. The amount of the award and the length of the obligation is dependent on a number of factors including: the needs and abilities of the parties, the length of the marriage, the standard of living enjoyed by the parties during the marriage, and any other factor the court deems relevant. In the past, many states had laws providing that only men could be ordered to pay spousal support to their wives.

In 1979, the United States Supreme Court decided a case entitled Orr v. Orr and created new Constitutional standards for spousal support laws. It is rare that the Supreme Court hears a case involving questions of family law because these issues are generally left to the states to decide. However, the Court determined that laws that prohibited courts from ordering women to pay spousal support were in violation of the United States Constitution. In Orr v. Orr, an Alabama statute permitted alimony to be awarded to wives but not to husbands. The stated rationale for this law was that the state was address the economic disparity between men and women and protecting women in financial need following a divorce. The Supreme Court analyzed the law under an intermediate scrutiny standard because it discriminated based on gender. The state had the burden to prove that the law was substantially related to an important government interest. The state did not meet that burden and the law was overturned.

Spousal support and child support typically go hand-in-hand. With the men’s rights groups on the rise, many fathers are finding new and more effective ways to seek custody of their children. Previously, the Tender Years Presumption was applied throughout the United States, including California. Under the Tender Years Presumption, mothers were presumptively given custody of children still in their “tender” years. Several courts have held that this presumption is unconstitutional for the same reasons the Supreme Court overturned the Alabama law in Orr v. Orr. Thus, the Tender Years Presumption was replaced almost uniformly with some variation of the “best interest standard” in child custody cases. Under the current standards, San Diego family courts often make both child support and spousal support awards in favor of men. However, many attorneys still debate whether these awards amount to a significant enough number to equalize the spousal and child supports awarded in favor of women.