Spousal Support

The determination of post-judgment or long-term spousal support is an art, not a science. The purpose of a support order depends on whether it is a temporary support order or a post-judgment support order. Temporary support orders ensure that the family bills continue to be paid during the pendency of the divorce case. They are formulaic and end automatically when the divorce is finalized. Post-judgment spousal support (both the duration of support and the amount of support) is highly-discretionary, as it is based on Family Code section 4320 factors and the ultimate discretion of the court. The use of the word “permanent” is a misnomer. Rarely, are support payees entitled to spousal support until they die. There is an expectation in California that both spouses make good faith efforts to become self-supporting. Marriages that have lasted longer than 10 years involve different rules and considerations.

Spousal support is one of the most interesting and complex areas of family law. For many clients, it is highly emotional. At Madigan & Lewis, LLP, we have decades of experience handling complicated spousal support cases. We will work with you to achieve the best possible outcome. 

Determining Spousal Support

For temporary spousal support, the court generally applies a formula in accordance with local court rules. The temporary spousal support formula is computed by taking 40% of the payor’s net income minus 50% of the payee’s net income, adjusted for tax consequences. When the case ends and the judge enters an order for “permanent” support, the court is charged with considering multiple factors set forth in Section 4320 of the California Family Code.

Those factors include:

  • The parties’ standard of living while married (i.e., “marital standard of living” or “MSOL”).
  • The parties’ age and health.
  • The parties’ respective abilities to pay and needs for support.
  • The parties’ assets and debts after the estate is divided.
  • The length of the marriage.
  • Any domestic violence that occurred during the marriage.
  • Other factors that are just and equitable.

When setting post-judgment spousal support, the court must base its decision on the standard of living achieved during the marriage, commonly referred to as the marital standard of living, weighed along with the other applicable section 4320 factors. The marital standard of living generally serves as the benchmark for the amount of support and is sometimes referred to as the support “ceiling.” 

This means that even if the payor can pay spousal support that allows the payee to live at a higher standard of living post-separation, the court retains broad discretion to not order it. Section 4320’s purpose is to maintain the marital standard of living after divorce, where possible, and not an increased post-separation standard of living. The marital standard of living has the greatest significance in high networth cases, where it is more often the case that the marital standard of living can be maintained post-separation in two separate households.

The court recognizes, however, that it is frequently the case that the payor does not have the ability to maintain two households post-separation at the marital standard of living – the court knows that it costs more to maintain two houses than one. In these cases, while still relevant, the marital standard of living may have less significance. The question of how to determine the marital standard of living is a complicated one and one for which the court has broad discretion.

It should be clear that the relevant statute provides a standard that is far from objective. In fact, it goes so far as to instruct the judge to consider “any other factors the court determines are just and equitable.” In other words, the court is given broad powers in making this determination.

Pursue Spousal Support Orders with Madigan & Lewis, LLP

Determinations of spousal support can have serious long-term consequences for litigants, both personal and financial. If you believe spousal support will become a concern in your divorce or legal separation, it is in your best interest to consult with an experienced divorce attorney. Call 650-482-8480 or send us a message to learn more about how we would analyze the amount and duration of spousal support in your case and obtain an order or defend against a request for spousal support.