Permanent Spousal Support & Earning Capacity to Maintain The Marital Standard of Living

Permanent spousal support is not guaranteed in divorce.  While temporary spousal support is frequently awarded, and its calculation relies upon a formula found in local court rules, permanent spousal support is not mandatory.  Furthermore, when permanent spousal support is awarded, the amount is not calculated using a formula like temporary spousal support.  Instead, permanent spousal support is determined using the marital standard of living as a reference point and weighing all of the 14 factors found in Family Code 4320. 

The weight given to each factor is within the discretion of the court, so long as the court does not act arbitrarily and considers the particular circumstances of the parties. 

Why Is Spousal Support Awarded?

Whereas temporary spousal support is awarded to maintain the status quo pending divorce, permanent spousal support is designed to provide financial assistance relative to the parties’ financial circumstances.  To that end, the court looks to the marital standard of living and factors in Family Code 4320, including the earning capacity to maintain the marital standard of living.

Note – not all factors favor permanent spousal support.  Factors such as the goal that the supported spouse become self-supporting can reduce permanent spousal support. An experienced family law attorney can emphasize favorable factors and discount unfavorable ones.

Family Code 4320(a): Sufficiency of Earning Capacities to Maintain The Marital Standard of Living

In ordering permanent spousal support, the court must consider the extent to which each party’s earning capacity can maintain the standard of living established during the marriage. The court must consider the following factors in its spousal support decision: (See Family Code 4320(a))

• The recipient’s marketable skills
• The job market for those skills
• The time and expenses required for the recipient to gain the appropriate education or training to cultivate marketable skills
• The need for retraining or education to gain more marketable skills or employment
• The extent to which the recipient’s present or future earning capacity is impaired by periods of unemployment during the marriage to permit the recipient to devote time to domestic duties.