Spousal Support, formerly referred to as “alimony” is a monthly amount of money given to a spouse in certain situations so as to help the supported spouse get back to (or at least closer to) the so-called “marital standard of living.” How the marital standard of living is determined can be a tricky proposition, and is beyond the scope of this article. However, in any case, the idea of whether spousal support should be ordered starts with this baseline determination (see Family Code 4320). In general, there are two types of spousal support, “temporary” and so-called “permanent” support. Temporary support is as it sounds, given temporarily after a divorce case is filed, and the party requesting support files a motion for support. In this case, the Court will generally start with a calculation of what support will be based on the parties’ respective incomes or earning capacity. Various computer calculation formulas are used (e.g. XSpouse) to initially determine what support should be. The amount of support awarded will generally be in place until a new Order is made. The Court (Judge) does have some discretion as to the amount and other terms of support, but generally once the Court determines the inputs into the computer calculation (income, deductions and the like) the computer-generated figure controls.

The second type of spousal support is “permanent” support, although the name is misleading. Permanent support doesn’t mean “forever” support. It simply refers to support that is not temporary. Permanent support awards can be for a set period of time or for an indeterminate time, and unless agreed otherwise, are subject to modification based on a change in circumstances. Although Courts may use the aforementioned computer calculations to determine a starting point or baseline for a permanent support award, a Court is not allowed to simply base its award solely on a computer calculation. Instead, the Court must consider all of the legal factors bearing on support. The list of those factors is contained in Family Code 4320, and is fairly lengthy. It includes such things as the age and health of the parties, whether there is documented evidence of a history of domestic violence, the income (or earning capacity) of the parties, the needs of the parties based on the standard of living during the marriage, and the duration of the marriage, just to name some of the factors. Importantly, section 4320 also provides that it is the goal that the party receiving support be self-supporting within a “reasonable period of time.” The section then provides that except for a marriage of long duration, a “reasonable period of time” is presumed to be half the length of the marriage. A “marriage of long duration” is rebuttably presumed to be anything over 10 years (see Family Code 4336) – hence the so-called “10-year rule.” So, if you are married for less than 10 years (from date of marriage to date of separation) a Court will likely order support terminated at a date that corresponds to one-half the length of you marriage. Support could still be modified before the termination date, however, depending on a change in circumstances.

There are also differences however, between whether the Court (absent an agreement) can order support reduced, including all the way to $0, versus whether it can order that a party may not seek a support award in the future. The ability of the Court to order support is termed the Court’s “jurisdiction” over the issue. In general, a Court (absent agreement) may not terminate its jurisdiction to award support to a party in a marriage of long duration – i.e. anything over 10 years in an initial proceeding to determine permanent support (which occurs in connection with your divorce). This is to be contrasted with a later motion filed some time after the divorce seeking to terminate support. Conversely, the Court can (and will) generally make orders terminating its jurisdiction over support in marriages of short duration – i.e. less than 10 years.

As always, every case is unique, and it is recommended you consult with an experienced family law attorney if you are either seeking spousal support or concerned about it being awarded against you.

When I get potential clients at the very beginning of the process, their #1 question is “how does this work?” Over the years, I have come up with a quick 3 step process to explain the basics.

While one of the most difficult situations in the break-up of any relationship is how to decide when and how the children will spend time with each parent, another difficulty can be the reconciliation of different parental views when it comes to making decisions for the children. The law provides for two types of custody, Legal and Physical.  Legal custody is defined primarily in Family Code Sections 3003 and 3006 (Joint legal custody and sole legal custody respectively) and concerns who makes decisions for the children, including  ones for  basic issues as when will the children go to bed and can they go over to a specific friend’s house, to more impactful issues, such as which school will they attend, and how will medical decisions (including vaccinations) be handled.  In California, most Family Courts will lean toward a “joint legal custody” order.  Such orders require the parents to discuss issues in an attempt to come to an agreement.  As is the case with many legal concepts (although it may not always seem like it) the concept of reasonableness goes a long way in determining what you can and cannot, or should and should not, do.  In  general, for simple issues, such as will the  child watch a movie or go to bed, the parent who has the physical custody of the child at the time simply decides.  Generally, no specific consultation with the other parent is required;  however, the devil is in the details as they say. Decisions that are likely to impact the child or cause the other parent concern, even on seemingly smaller issues, should be discussed with the other parent.   While consulting the other parent on large issues, such as for example, deciding to seek counseling services for your child, is important, so would be the decision to allow a young child to watch an “R” rated movie.

For particularly tricky issues, such as where will the child go to school, or should a child have a certain medical procedure, the Courts may have to weigh in and decide the issue.  Usually this is accomplished by a parent filing a motion with the Court to address the issue.  Most motions are heard a month or more after filing, so early action on the issue may be necessary.  Depending on how immediate the need is for a decision, a person can always ask for an emergency or ex-parte  order.  However, Judges often view these motions very critically, so proper pleading is a must.

Here at the the Law Office of Michael N. McCallum, p.c., our attorneys have dealt with numerous legal custody issues and can advise you about the best way to deal with your issue, whether that be through negotiation, a motion, or something else.  As always, the sooner you know there is an issue, the better it is to consult with an attorney.