Many people have the mistaken notion that permanent spousal support is guaranteed in divorce. In reality, the award, amount, and duration of permanent spousal support are guided by weighing 14 factors found in Family Code 4320. Whereas temporary spousal support is calculated using a formula, permanent spousal support is guided by the multifactored inquiry held in Family Code 4320. One of those factors is the age and health of the parties.
Life Insurance Beneficiary
Permanent spousal support can take different forms. Usually, it takes the form of a monthly payment, but it can also take the form of other types of financial assistance. In the case of older parties in poor health, permanent spousal support can include an order designating the other party as a beneficiary to life insurance. By adding the other party as a beneficiary, the other party gains continuity of financial assistance relative to the financial circumstances of the parties.
Public Policy
While temporary spousal support is designed to equalize litigating power by maintaining the status quo pending divorce, permanent spousal support seeks to provide financial assistance after divorce relative to the parties’ financial condition.
Family Code 4320(h)
The age and health of the parties are taken into consideration pursuant to Family Code 4320(h) when awarding spousal support. For example, an older, less healthy, supported spouse is more likely to receive a favorable long-term spousal support order than a younger, healthier spouse. However, spousal support should not be ordered based on this factor alone. The court should also take into consideration all the other factors applicable to the parties’ marriage, including all of the statutory factors.
Amount of Support
It’s important to note that the amount of permanent spousal support can be much less than temporary spousal support, even when the parties are older or suffer from health conditions. In setting temporary spousal support, the court makes a calculation using a formula identified in local rules. In contrast, permanent spousal support is set by evaluation of the 14 factors found in Family Code 4320, including evaluation of the age and health of the parties. Unfortunately, some of those factors are bound to weigh against increased support, such as when the parties are younger, healthy, and the court is bound to consider the goal of self-support within a reasonable time following divorce.