Temporary and permanent spousal support can be some of the most important financial outcomes in divorce. For longterm marriages, permanent spousal support will be a financial windfall for the recipient with tax advantages and a significant financial burden for the payor. In light of the financial ramifications, many parties significantly benefit from the advocacy of a family law attorney with experience in spousal support litigation.
Factors to Consider in Permanent Support
In determining whether or not permanent support should be awarded, the family court will consider a variety of statutory factors. In this article, we will discuss the first half of the factors to be considered by the court.
Sufficiency of Earning Capacity to Maintain Marital Standard of Living
The court must determine if each party’s earning capacity is enough to maintain the marital standard of living. In doing so, the court must take into account all of the following factors:
- The supported party’s marketable skills
- The job market for those skills
- The time and expenses needed for the supported party to acquire the necessary education or training to develop those skills
- The possible need for retraining or education to acquire more marketable skills or employment
- The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment incurred during the marriage to permit the support party to devote time to domestic duties.
Contributions to Supporting Party’s Education and Training
Contributions made by the supported party to the paying party must be considered by the family court. In a way, the court is looking at the ways in which the supported party contributed to the attainment of an education or a career by the paying party. A practical example of this is a wife who works part-time to support the household while the husband pursues higher education that eventually leads to higher pay.
However, the efforts referred to should be directed at helping the paying party attain education or advance their career. When the paying party has already attained an education or career position before the marriage and the supported party’s efforts are limited to domestic contributions, the contributions should not be counted.
Paying Party’s Ability to Pay
The ability of the paying party to pay support must be considered by the family court. In doing so, the court must take into account their earning capacity, earned and unearned income, assets, and standard of living.
The consideration of the party’s ability to pay is not limited to actual income. The court can consider a party’s earning capacity in place of actual income in deciding whether or not to order permanent spousal support. However, there must be evidence that the supporting party has both the ability and opportunity to obtain employment that would generate greater income.
A party’s assets can also be used by the court as a basis for awarding spousal support. A party’s ability to pay includes his or her assets as well as income earned. Spousal support can be made payable from a party’s earnings and incomes, community property, quasi-community property, and separate property.
Support can also consist of receiving a percentage of future income from exercise of stock options or from bonuses received.
The needs of the paying party, as well as the supported party, must also be weighed by the court. The needs of the parties will be based on the standard of living established during the marriage. The law does not provide a set formula for determining the marital standard of living. It is generally defined as the general station in life the parties enjoyed during their marriage.
Parties Obligations and Assets
The court can look into a party’s separate property when determining his or her need for support. When there are no children, and a party has separate property sufficient for their support, then no spousal support should be ordered.
The court is not limited to review of the actual income earned by assets. It may consider the estate or asset as a whole, including its income potential as well as its total value.
Length of Marriage
The court considers the length of the parties’ marriage. The purpose of this is not for the computation of the amount of support, but rather for the duration and length of the support order. It helps the court decide whether jurisdiction over spousal support should be retained indefinitely, or whether spousal support should be ordered for a limited term.
Employment of Supported Party and Its Impact on Children
The court must consider the possibility of whether or not the supported party can engage in gainful employment without unduly affecting the interests of the dependent children in that party’s custody. In some cases, the court may decide that it is more appropriate for a supported spouse to postpone seeking a job to care for dependent children, especially those with special needs.
Age and Health of Parties
The age and health of the parties will also factor into the court’s decision. For example, an older, less healthy spouse is more likely to receive a favorable long-term support order. However, this factor should not be the sole basis for the support order. Rather it should be considered along with all other factors.
History of Domestic Violence
Any history of domestic violence will affect the court’s decision in ordering permanent support. Domestic violence may be committed between the parties or perpetrated by either party against either party’s child. This factor also considers the following:
- Supported party’s emotional distress resulting from domestic violence committed by the supporting party
- Any history of violence against the supporting party by the supported party
The tax consequences of the support order must also be factored in by the court. Spousal support payments are no longer included in the gross income of the spouse receiving it. In tandem, the spouse paying support can no longer deduct the payments made.
The court must consider and balance the hardships to each party.
Goal of Self-Support
When deciding the amount and duration of the spousal support, the court will bear in mind the goal that the supported party will become self-supporting within a reasonable period of time. A reasonable period of time is generally considered to be one-half of the length of marriage, except in a marriage of long duration. For the purposes of the law, marriages of long duration are those that exist for 10 years or longer.
The court has the discretion to order support for a greater or lesser length of time depending on the parties’ circumstances. For example, a homemaker from a lengthy marriage might find it impossible to get a job in the current job market, thus it might be more appropriate to order support for an extended length of time.
If a party is unwilling or incurs unreasonable delay in finding a job, the court may also consider this factor in fixing the amount and duration of support.
Conviction for Domestic Violence or Attempted Murder
There is a presumption against awarding support to a spouse who has been convicted of domestic violence against the other spouse. This presumption may be rebutted by a preponderance of evidence.
A spouse who has been convicted of attempting to murder the other spouse is prohibited from receiving any form of spousal support.
Criminal Conviction for Violent Sexual Felony
The following guidelines shall apply if there is a criminal conviction for a violent sexual felony perpetrated by one spouse against the other:
- An award of spousal support to the convicted spouse from the injured spouse is prohibited
- Where economic circumstances warrant, the court must order the attorney fees and costs incurred by the parties to be paid from community assets. The injured spouse cannot be required to pay any attorney fees of the convicted spouse out of their separate property.
- At the request of the injured spouse, the date of legal separation shall be the date of the incident giving rise to the conviction, or earlier, if the court finds circumstances justifying the earlier date.
- The injured spouse shall be entitled to 100 percent of the community property interest in the retirement and pension benefits of the injured spouse.
Other Just and Equitable Factors
The court may also consider other factors it deems just and equitable, in addition to the factors already mentioned by the law.