I heard a funny line from the HBO show Entourage recently. It was spoken by the character Ari Gold. He said to his wife something to the effect of "come on honey, we've been married for 10 years and there is no prenup, I'm not going anywhere."

There is actually a lot of truth to that statement. For the higher earner spouse, the length ofthe marriage can have some serious consequences on spousal support. Let's look at California law.

When a court decides the length of time that spousal support (alimony) should be given by one spouse to another, it will look toward the length of the marriage for guidance. Generally, unless the marriage was a marriage of “long duration,” the court will likely order spousal support for about one-half the length of the marriage. For example, in a 5 year marriage, spousal support may be as long as 2 and 1/2 years. One-half the length of the marriage is considered a “reasonable amount of time” for the supported spouse to become self-supporting. This is not a hard and fast rule however. The court still has discretion to order support for a shorter or longer period of time based on other factors and the circumstances of both spouses including job history, education, and ability to work.

If the marriage was a marriage of “long duration,” however, the court may require spousal support for a longer period of time for the supported spouse to become self-supporting. This can be "lifetime" support until the supported spouse becomes remarried or either dies. A marriage generally is a marriage of long duration if it was 10 years or longer, measured from the date of marriage to the date of separation. That "date of separation" issue can get complicated and we have discussed that elsewhere in: http://divorcechat.blogspot.com/2007/08/date-of-separation-what-is-it-why-does.html

The court also has the discretion to consider periods of separation during the marriage in deciding whether the marriage was one of long duration. Spouses sometimes break up, live apart and get back together. The court does consider that when deciding if a marriage is longer than 10 years. The opposite is also true. Just because a marriage was less than 10 years does not mean the court will not consider it of a long duration. The rules are a bit flexible and depend mostly on the circumstances of the two spouses.

I am often asked "what about the time we were together before marriage?" The court generally does not include a period of cohabitation prior to marriage in its determination of the length of marriage. However, the court may include the duration of the parties’ previous marriage to each other. Sometimes, a couple may break up, divorce and then get remarried only to divorce again. If the marriages combined were more than 10 years, the court may consider that when deciding if the marriage is a long term marriage.

To my readers: My name is B. Robert Farzad. I am the managing partner of the law firm of Farzad & Mazarei. To contact me with any questions, email me at rfarzad@farzadlaw.com or call us toll free at (877) 857-6500.

 

Posted by B. Robert Farzad, managing partner of Farzad & Mazarei, a law corporation.

 

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We have discussed temporary spousal support in an earlier column (below). Now, let's discuss that final spousal support award that we call "Spousal Support by Judgment".

So, you have reached the end of your case. You have the temporary spousal support issues out of the way but now it is time to either settle and agree on a final spousal support number or let the court decide what it should be. What do you do?

Is the purpose of the final spousal support award still to maintain the status quo? Short answer: not really, although it is indirectly one of the many facts the court takes into consideration.

The information the court needs to make a final support award is different than temporary spousal support. Here is how it works. The court may order one spouse to pay support for the other spouse in “an amount, for a period of time, that the court determines is just and reasonable, based on the standard of living established during the marriage.” So, now we are dealing with the "standard of living established during the marriage." I know what you're thinking - what the heck does that mean? Here is what it means to the court and what the court takes into consideration when deciding how much, if any, spousal support should be awarded.

The focus is of course on earnings and earning capacity (what you earn as well as how much you can and should earn).

(1) The marketable skills of the person receiving or asking for support; the job market for those skills; the time and expenses required for that person to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment. In other words, what can you earn, and what do you need to learn to earn that or more?

(2) The extent to which the present or future earning capacity of the person receiving or asking for support is impaired by periods of unemployment that were incurred during the marriage to permit the supported spouse to devote time to domestic duties. This is a common point of contention when one spouse was the homemaker while the other "brought home the bacon", to use a cliche.

(3) The extent to which the person receiving support or asking for support contributed to the attainment of an education, training, a career position, or a license by the person paying for support. Naturally, if one spouse put the other through school or worked while the other could go to school, the Court will take that sacrifice into consideration when awarding spousal support.

(4) The ability of the person paying spousal or being asked to pay spousal support to actually pay spousal support, taking into account his or her earning capacity, earned and unearned income, assets, and standard of living.

(5) The needs of each spouse based on the standard of living established during the marriage. Sound familiar? This is similar, though not identical, to the temporary support factor.

(6) The obligations and assets, including the separate property, of each spouse. What do you own and what do you owe? That's one very important fact the court takes into consideration.

(7) The duration of the marriage. Remember that marriages of less than 10 years are considered short term marriages most of the time. Marriages of 10 years or more are long term and spousal support may be lifetime support (with certain exceptions such as remarriage, etc.) and not just for a time that is 1/2 of the duration of the marriage.

(8) The ability of the spouse receiving support or asking for support to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the spouse. The court looks at the custody issues. If one parent has primary custody of the children and especially when there are more than one child, the court takes that into consideration when deciding whether or not that parent can work and, if so, how much.

(9) The age and health of the spouses. This goes without saying. The older the spouses get, the different their abilities and needs are.

(10) Documented evidence of any history of domestic violence between the spouses, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported spouse by the supporting spouse, and consideration of any history of violence against the supporting spouse by the supported spouse. Family Court does not take kindly to those who commit and/or have been convicted of domestic violence and if you have committed domestic violence and are asking for support, you may have an uphill battle. This is not cut and dry. This is a fairly complex area of support and like most rules, there are exceptions.

(11) The immediate and specific tax consequences to each spouse.

(12) The balance of the hardships to each spouse.

(13) The goal that the supported spouse shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration, a "reasonable period of time" is one-half the length of the marriage. The court wants everyone to work or become employed within a reasonable period of time. Even with long term marriages, the court will still expect a healthy and capable spouse asking for spousal support to get into the work force. The days of sitting back and hoping to get paid for the rest of one's life are pretty much gone (assuming they were ever here).

How much discretion does the court have to take these factors and others into consideration? A lot. The law gives courts "broad" discretion in deciding the amount of spousal support and the length of time provided. However, once the court has made a decision and awarded spousal support by judgment, the court cannot modify the order unless one of the spouses demonstrates a “material change of circumstances” justifying a modification.

To my readers: My name is B. Robert Farzad. I am the managing partner of the law firm of Farzad & Mazarei. Our firm handles complex and simple divorce actions & related family law matters including those involving paternity, child custody and child support. Farzad & Mazarei handles cases throughout Southern California including Orange County, Los Angeles as well as Riverside & San Bernardino Counties. To contact me with any questions, email me at rfarzad@farzadlaw.com or call us toll free at (877) 857-6500.

 

Posted by B. Robert Farzad, managing partner of Farzad & Mazarei, a law corporation.

 

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What is the date of separation?

It's the date that either person (husband or wife) no longer intends to resume the marriage and his or her actions are consistent with that "finality of the marital relationship." It generally includes living separate and apart, separation of finances, as well as either person no longer holding the other one out as his or her husband or wife. Sexual relations also is a factor. The ultimate test of course is "intent". What was either spouse's intent? To end the marriage or to take a break from one another before attempting to reconcile?

Why it the date of separation important in divorce action?

Once the parties are separated, money earned after separation, property acquired after separation with post-separation money, and debts incurred after separation are the separate asset or obligation of the person that acquired or incurred it. There are of course exceptions to the rule. For example, you cannot hord and hide your money during the marriage and then buy or invest that after separation in the hope it is separate property.

Another importance of the date of separation is spousal support (sometimes called alimony). If spouses are married for 10 years or longer before separating, California considers that a "long term" marriage. The 10 + years means if one spouse is the higher earner, he or she may have an obligation to pay lifetime spousal support. However, if the time between the date of marriage to the date of separation is less than 10 years, the higher earner's spouse may only be paying spousal support for 1/2 the duration of the marriage. The date of separation is of course only one of the factors the court takes into consideration when determining the duration of the spousal support. Sometimes however, it may be the most important.

To my readers: My name is B. Robert Farzad. I am the managing partner of the law firm of Farzad & Mazarei. Our firm handles complex and simple divorce actions & related family law matters including those involving paternity, child custody and child support. Farzad & Mazarei handles cases throughout Southern California including Orange County, Los Angeles as well as Riverside & San Bernardino Counties. To contact me with any questions, email me at rfarzad@farzadlaw.com or call us toll free at (877) 857-6500.

 

Posted by B. Robert Farzad, managing partner of Farzad & Mazarei, a law corporation.

 

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The purpose of this blog is to help you understand what facts and information the court considers before awarding one spouse temporary spousal support or alimony in a divorce action. Temporary spousal support is support before trial.

One spouse often asks the other spouse for temporary spousal support (also called alimony) while the divorce action is pending. However, temporary spousal support is not automatic. If you are the party seeking it, you must first understand what facts and information the court needs to award spousal support.

During of a marital dissolution proceeding, the court may order either spouse “to pay any amount that is necessary for the support” of the other spouse.

A court generally may order temporary (also called “pendente lite” for those of you who like latin) spousal support in “any amount” on the basis of the party’s need and the other party’s ability to pay. That is because temporary spousal support “is utilized to maintain the living conditions and standards of the parties in as close to the status quo position as possible pending trial and the division of their assets and obligations.”

That my readers is the key: Maintaining the “status quo”.

The court uses the marital lifestyle as a benchmark for temporary spousal support orders. While most courts recognize that the cost of running two households is greater than the cost of running one, and may modify spousal support awards accordingly, it is rare that a court denies the lower earner spouse spousal support if the support is necessary to maintain the status quo to which he or she became accustomed during the marriage.

Temporary spousal support is awarded regardless of the merits or procedural posture of the case. In other words, the court doesn’t necessarily care that you will get spousal support at the end of your case before it awards you spousal support while your case is pending.

Further, the court generally is not restricted by any set of statutory guidelines in ordering temporary spousal support with one major exception: If the party requesting spousal support has a documented history of domestic violence and has a criminal conviction for domestic violence, that requesting spouse may not get spousal support.

Of course, the court may take all assets and income, and all marital expenses in consideration before it awards spousal support but generally, the most important factor is the gross income of the parties and the status quo during the marriage.

To my readers: My name is B. Robert Farzad. I am the managing partner of the law firm of Farzad & Mazarei. Our firm handles complex and simple divorce actions & related family law matters including those involving paternity, child custody and child support. Farzad & Mazarei handles cases throughout Southern California including Orange County, Los Angeles as well as Riverside & San Bernardino Counties. To contact me with any questions, email me at rfarzad@farzadlaw.com or call us toll free at (877) 857-6500.

 

Posted by B. Robert Farzad, managing partner of Farzad & Mazarei, a law corporation.

 

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