Spousal Support: Ability to Pay

Permanent spousal support is not guaranteed in divorce.  Rather, its amount and duration are fixed by the family court after consideration of 14 statutory factors found in Family Code 4320.  One of those factors is the supporting spouse’s ability to pay spousal support. 

Note – temporary spousal support can be granted while the divorce is pending before the court.  Temporary spousal support is calculated according to a statutory formula.  In contrast, permanent spousal support is not calculated according to a formula; rather, its amount and duration are determined by weighing the factors found in Family Code 4320.

Why Does The Court Consider The Supporting Party’s Ability to Pay?

Apart from being an enumerated factor in Family Code 4320 requiring evaluation in setting permanent spousal support, the court reviews the parties’ ability to pay support to set a reasonable amount within the context of the parties’ financial circumstances.

Family Code 4320(c): Supporting Party’s Ability to Pay

Since permanent spousal support is not mandatory, the court must also consider whether the supporting party can afford spousal support. The court should look into the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.

Earning Capacity

The supporting party’s ability to pay is not limited to their actual income.  The court can look beyond a party’s actual income and consider their earning capacity. However, before considering a party’s earning capacity, there must be evidence that the supporting party has the ability and opportunity to gain employment that would yield higher income.

Assets

A party’s ability to pay includes assets as well as income. Thus, the court can also use the assets being held by the supporting party as the basis for awarding spousal support. For example, if the supporting party only earns $20,000 per year but owns several homes outright, the court may consider the assets in determining whether the party can pay spousal support.