Divorce - Spousal Support
There are two kinds of spousal support: temporary spousal support and post-Judgment spousalsupport. Temporary spousal support is that which is usually requested by the lower-earning spouse at the outset of the proceedings. It begins to accrue from the date the request was filed, and is based on a computer calculation much like the one used to calculate child support. Each party’s gross monthly income is put into the computer, along with the child custody and visitation numbers, what each person pays for health insurance, union dues, mandatory retirement, and whether either parent is supporting his/her child(ren) from another relationship. Minimum wage and/or ability to earn are also imputed in appropriate circumstances. Temporary spousal support is usually higher than post-Judgment spousal support because it is designed to minimize the upset to the life of the lower earning spouse when the household suddenly divides. By the time the case reaches trial or settlement, some time has passed and the lower earning spouse is expected to have found other means of supplementing his/her support.
Post-Judgment spousal support is based on a statute by which the court looks at various factors and uses its discretion to arrive at a support figure which will take the needs of the supported spouse, as well as the supporting spouse’s ability to pay, into consideration. Such factors include, but are not limited to, the education and work experience of each party, the extent to which one spouse retreated from the marketplace in order to devote time to domestic duties, the extent to which one spouse supported the other spouse in his/her pursuit and/or attainment of further education and credentialing, and whether the supporting spouse perpetrated domestic violence on the supported spouse. If a marriage was less than 10 years from date of marriage to date of separation, the court may not order spousal support for longer than one-half the length of the marriage. If a marriage lasted longer than 10 years, it is referred to as a “long-term” marriage, and the half-time rule is statutorily not to be imposed but, sometimes, courts still impose it on a discretionary basis. Courts also frequently issue a “Gavron” warning to the receiving spouse: that s/he is required to use his/her best efforts to become self-supporting as soon as possible. The Gavron rule applies to both long-term and non-long-term marriages.
There is case law dating back to the late 1990’s and early 21st century which allows courts to use their discretion in determining whether to consider the amount of previous over-time earned by the supporting spouse. This is based on the reasoning that, if the spouse was working unreasonable amounts of over-time in order to sustain an unreasonably costly lifestyle, it would be unfair to impose that burden on him/her when that lifestyle has shattered. Newer case law, however, provides courts with more structure for reasoning, including whether the spouse working much overtime is likely to continue to work such overtime.
Fresno County, Kings County, Tulare County, especially Visalia, California, and Surrounding Areas