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By Irving H. Zaroff, JD LMFT and Dana Schutz, MA LMFT
Historically, because divorce was rare, husband's obligation to support his wife continued after separation. With the growing view that men and women should be treated equally, the law recognized that both husbands and wives owed each other a similar duty of support. Accordingly, courts now may order either the husband or wife to pay alimony.
Among the many issues to be resolved in a divorce, courts are endowed with the greatest discretion when it comes to spousal support. How does one decide if there should be support, how much is appropriate and how long should it last? The guiding factor in determining spousal support is deciding what the standard of living had been for the couple or family. Spousal support is intended to provide both spouses with the ability to enjoy the same standard of living after the marriage as they did during the marriage. Clearly, very few families will be able live at the same financial level with two homes as they did with one.
So how does a court decide what amount of payment the paying spouse should make to the supported spouse in order to move in the direction of an equal standard of living? California requires judges to consider 14 factors in calculating support. These include the standard of living; earning capacity of each spouse; contributions made by supported spouses to help paying spouses develop careers; age and health; hardships; etc. After having considered all these various factors, the court may consider “any other facts the court determines are just and reasonable.” This factor alone creates wide discretion.
How long will support last? California law describes marriages as short term (less than 10 years) or long term (greater than 10 years). It suggests support last no longer than half the length of the marriage for short term marriages. Long term marriages can range up to an indefinite amount of time. However, courts are given the discretion to order shorter or longer periods of support regardless of the length of the marriage (after considering the factors referred to earlier).
What about the computer guidelines we hear about? There are guidelines generated in computer programs to calculate spousal support based on after-tax income. But these figures are generally applied for temporary support and expire when a permanent order is issued. The courts are forbidden to use these programs to calculate permanent support.
What does all this mean? As with most issues, leaving it to the court is a risky business. Making your own agreement generally makes more sense.