Spousal support, otherwise known as
partner support for domestic partners, can be a touchy subject for spouses going through a
divorce. In some marriages, the higher-earning spouse is comfortable with and entirely
willing to pay spousal support for as long as needed, but that is more
the exception than the rule.
In the typical scenario, the higher-earning spouse does not want to pay
spousal support any longer than they have to and they are eager to see
their soon-to-be ex-husband or wife get on their feet and become self-supportive.
Does the family court award spousal support in all divorce cases? As a
matter of fact, no it does not. Spousal support is awarded on an as needed,
case by case basis. Each couple’s financial circumstances are unique,
therefore, you do not want to compare your situation with your best friend’s
or your co-worker’s.
How the Court Awards Spousal Support
Generally, the court awards spousal support in one of the following actions:
an annulment, a legal separation, or a divorce. Spousal support can also
be awarded in a
domestic violence case, along with
child support where applicable.
In the case of a divorce action, either spouse can petition the court for
temporary spousal support while their divorce is pending through the court,
which takes at least six months. Once the divorce is finalized, the judge
can make orders for permanent spousal or partner (for
domestic partners) support.
Just because a spouse asks for spousal support, it does not guarantee that
he or she will get it. Before the judge can make an order for spousal
support, he or she will take the following factors into account:
- The duration of the marriage
- The age and health of each spouse
- Each spouse’s income and assets
- Each spouse’s earning capacity
- A spouse’s contribution to the other’s education
- Contributions as a homemaker/stay at home parent
- Whether a spouse needs to care for small children
- The tax implications of spousal support
- If child support will be paid
- The need for spousal support
- If the higher earning spouse can afford it
If both spouses earn roughly the same amount each year, the chances of
the court awarding spousal support are lower. On the other hand, if one
spouse earns significantly more than the other, or if one of the spouses
has been out of the workforce to raise the couple’s children, the
chances of spousal support being awarded are greater. It’s ultimately
up to the judge’s discretion.
Once temporary spousal support is made into a permanent order, how long
does it last? While the time varies from case to case, as a general rule
spousal support is ordered for half the length of the marriage. The exception
is marriages of a “long duration,” which are marriages that
lasted 10 or more years.
If a marriage lasted 10 or more years, the judge may not set an end date,
but that does not mean that it cannot be modified or terminated at a later time.
When Circumstances Change
When it comes to families and divorce,
things change. For the supported spouse, he or she may go back to school and upon graduating,
earn a good living. Or, the supported spouse’s career may take off
and they no longer need support.
The supported spouse can also remarry, which would in effect terminate
the spousal support unless there’s a written agreement, such as
a prenup, that states otherwise.
Circumstances can change for the paying spouse as well. Let’s say
that “John” was married to “Susan” for nine years
and he was ordered to pay spousal support to Susan for four and a half years.
In his sixth year, John was injured at work and had to go on permanent
disability. Since his income was greatly reduced, John could no longer
afford to pay Susan spousal support.
Fortunately, Susan was in much better financial shape than she was when
she divorced John, so she was able to afford having her support payments
stopped due to John’s work injury.
Modifying or Terminating Spousal Support
After a judge has made an order for spousal or partner support, either
spouse may one day need to make changes to the order. In this situation,
usually the paying spouse aspires to reduce, if not terminate their spousal
support payments, while the supported spouse seeks to increase their monthly support.
If you are the paying or supported spouse and you wish to ask the court
to change or terminate your payments, you will have to show the court
that there has been a significant change in circumstances since the spousal
or partner support order was entered.
Some reasons why spousal support may need to be modified:
- The supported spouse no longer needs the support
- The paying spouse can no longer afford to pay the amount
- The supported spouse is not making a good effort to become self-supporting
- The supported spouse remarries
Paying spouses beware: If you cannot afford the current support amount,
or you believe that it needs to be terminated, you cannot simply start
paying less or stop paying all together. Until a judge signs off on a
new court order, the existing court order will be in full force.
Even if you have a verbal agreement with your ex-spouse or domestic partner,
it’s unenforceable until it’s in writing and signed off by
a judge. Like child support, spousal support is NOT retroactive.
So, if you lose your job and wait three months before filing papers to
modify the support, the judge can’t go back and reduce what you
owe. The judge can ONLY go back as far as the date you filed the papers
asking for a downward modification.
If you’re looking for a Los Angeles divorce lawyer, contact
Claery & Hammond, LLPfor a free consultation!