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How Spousal Support is Determined: A Helpful Guide

When a couple legally separates or divorces, the court may order one spouse to pay the other an amount of monetary support each month. This is called “spousal support” or “alimony.” 

In order for spousal support to be established and to officially commence, there must be a court order. Depending on the phase of your proceeding, there are two types of spousal support: temporary spousal support, sometimes referred to as pendente lite spousal support, and permanent, or “long term” spousal support.

Temporary Spousal Support

Between the time of the filing of the Petition and entry of the final Judgment in a case, the court may order either spouse to pay any amount necessary for the support of the other spouse. Temporary support may be ordered in any amount based on the recipient’s need and the payer’s ability to pay. The purpose of such support is to enable the recipient to live at or near his or her accustomed manner pending disposition of the action.  

Pursuant to Family Code §3600, temporary spousal support is ordered for the duration of litigation and remains in place during the pendency of the action.

In setting temporary spousal support, the courts generally use a formula to calculate the amount of spousal support.  There are a few guideline formulas; the particular formula used by the court will depend on the county where the action is pending. The guideline provides that the paying spouse’s support be presumptively 40% of his or her net monthly income, reduced by one-half of the receiving spouse’s net monthly income. If child support is an issue, spousal support is calculated after child support is calculated. Courts may substitute the recipient’s earning capacity for his or her actual income as necessary.

Permanent Spousal Support

Permanent spousal support is ordered at the conclusion of a dissolution proceeding to maintain both parties’ lifestyles as near as possible to the marital standard of living. The Family Code provides that a marriage of long duration is a marriage that lasts ten (10) years or longer.

The court considers the Family Code §4320 factors in determining the amount and duration of spousal support.  The court can award spousal support greater than, equal to, or below the amount necessary for the parties to maintain the marital standard of living established during the marriage. 


The Family Code §4320 factors are as follows:

  1. The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
    1. The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party 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;
    2. The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties;
  2. The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party;
  3. The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living;
  4. The needs of each party based on the standard of living established during the marriage;
  5. The obligations and assets, including the separate property, of each party;
  6. The duration of the marriage;
  7. The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party;
  8. The age and health of the parties;
  9. All documented evidence, of any history of domestic violence, as defined in Section 6211, between the parties or perpetrated by either party against either party’s child, including, but not limited to, consideration of a plea of nolo contendere, emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, any history of violence against the support party by the supported party, issuance of a protective order after a hearing pursuant to Section 6340, and consideration f a finding by a court during the pendency of a divorce, separation, or child custody proceeding, or other proceeding under Division 10, that the spouse has committed domestic violence;
  10. The immediate and specific tax consequences to each party;
  11. The balance of the hardships to each party;
  12. The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a “reasonable period of time” for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties;
  13. The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4324.5 or 4325; and
  14. Any other factors the court determines are just and equitable.

After the court properly weighs these factors, the spousal support order then becomes part of your final divorce or legal separation judgment.

There are several factors which may impact both the length and amount of spousal support. It is important to retain experienced counsel in order to ensure your support order is fair and reasonable and that it takes into account the specific facts of your case. Contact Bremer Whyte Brown & O’Meara LLP to schedule a consultation to discuss how spousal support may work in your matter today.