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Spousal Support FAQ

  • What does a pendente lite spousal support order mean?
  • What is the difference between temporary and permanent spousal support?
  • Does alimony mean the same thing as spousal support?
  • What factors does the court consider for temporary spousal support?
  • What factors does the court consider for permanent spousal support?
  • Can spousal support be modified?
  • I have been married for more than 10 years – does that have any significance?
  • I live in Newport, Huntington Beach, Laguna Beach, or other expensive areas in Orange County – does that affect spousal support?
  • If I get an annulment can I still request spousal support?
  • What is the process to ask the court to terminate spousal support?
  • My ex-spouse’s income greatly increased after our divorce – can I request an increase in spousal support?  Even though I work, can I still request spousal support?
  • My spouse refuses to work – what can I do?
  • What do I have to prove for the court to impute income?
  • What is a wage garnishment?

What does a pendente lite spousal support order mean?

A pendente lite, or temporary, spousal support order is a support order that exists after a petition for divorce or legal separation has been filed, but before a final judgment of divorce has been entered.  The court generally considers each party’s needs and ability to pay when setting the amount of temporary spousal support.  The exact calculation for the amount of spousal support the court will order is generated by a computer program that weighs the different factors considered by the court.  The court may order permanent spousal support at the time of final judgment of dissolution.

What is the difference between temporary and permanent spousal support?

Temporary spousal support is a support order that exists after a petition for divorce or legal separation has been filed, but before a final judgment of divorce has been entered.  Permanent spousal support refers to a support order that exists after a judgment of dissolution has been entered.  The purpose of temporary spousal support is to ensure that the supported spouse is able to meet his or her needs while a divorce case is pending.  Permanent spousal support is generally ordered to maintain the standard of living that existed during the marriage.

Does alimony mean the same thing as spousal support?

Yes.  The terms alimony and spousal support can be used interchangeably, however, the court as well as California law refer to spousal support.

What factors does the court consider for temporary spousal support?

The court generally considers each party’s needs and ability to pay when setting the amount of temporary spousal support.  The exact calculation for the amount of spousal support the court will order is generated by a computer program that weighs the different factors considered by the court.  A parties’ net income is calculated using the computer program and that is a primary figure utilized by the court to determine a party’s ability to pay.

What factors does the court consider for permanent spousal support?

California law outlines a number of different factors that the court must consider in determining permanent spousal support, including the following:

-length of the marriage;

-parties’ earning ability;

-parties’ ability to pay;

-ability of the supported party to seek employment without interfering with the interest of the children;

-parties’ needs;

-age and health of the parties

-marital standard of living;

-parties’ educations;

-taxes;

-whether there has been domestic violence; and

-any other factors that the court determines are equitable and just.

Because the court is given considerable discretion in ordering permanent spousal support, the assistance of an attorney is helpful to defend your rights and ensure that any award of spousal support is fair.  Our experienced spousal support lawyers will help explain your rights and obligations concerning spousal support and will help you navigate through this difficult time.

Can spousal support be modified?

Even after a final judgment in a divorce case, there may be ongoing procedures to modify a previously issued judgment or decree.  A post-judgment modification action occurs where a party to an existing judgment seeks to change a provision of the judgment.  A party seeking a post-judgment modification of a spousal support order must demonstrate a change of circumstances justifying a change to the original order.  While there is no formal definition of what constitutes a change of circumstances, some courts may consider the following a change of circumstances justifying a court-ordered modification of a previous order:

-the supported spouse is cohabitating with a person of the opposite sex;

-loss of job or increase or decrease in earnings; and

-new spouse or mate.

Our attorneys have experience in handling all types of post-judgment proceedings and can help you to determine whether the judgment in your case may be modified.

I have been married for more than 10 years – does that have any significance?

The duration of a spousal support order generally depends on the length of the marriage.  For marriages lasting less than 10 years, the court will generally order spousal support for a period equal to half the length of the marriage.  On the other hand, for marriages lasting more than 10 years, the court may not set a date for the termination of spousal support absent the parties’ agreement.  Instead, the parties will be required to return to court at some time in the future to determine whether the spousal support obligation will continue.  However, even in marriages lasting more than 10 years, California law provides that the supported spouse is expected to become self-supporting within a reasonable period of time.

Because the court is given considerable discretion in ordering permanent spousal support, the assistance of an attorney is helpful to defend your rights and ensure that any award of spousal support is fair.

I live in Newport, Huntington Beach, Laguna Beach, or other expensive areas in Orange County – does that affect spousal support?

Unlike child support, expenses are considered for the issue of spousal support because the purpose of temporary spousal support is to meet the needs of the receiving spouse, and the purpose of permanent spousal support is to maintain the standard of living that existed during the marriage.  As a result, if you and your spouse maintained a high standard of living characterized by living in expensive areas of Orange County such as Dana Point or San Clemente, it will be a factor that the court considers in determining spousal support.  However, because the court is given considerable discretion in ordering permanent spousal support, the assistance of an attorney is helpful to defend your rights and ensure that any award of spousal support is fair.

If I get an annulment can I still request spousal support?

No.  An annulment occurs where there is a void or voidable marriage.  Legally, this means that the marriage never existed and, accordingly, there cannot be an award of spousal support.

What is the process to ask the court to terminate spousal support?

The procedure for terminating spousal support begins by filing an Order to Show Cause, or OSC, with the court.  To support your request to end the spousal support order, you must demonstrate a sufficient change of circumstances.  While there is no formal definition of what constitutes a change of circumstances, some courts may consider factors such as the remarriage or cohabitation by the supported spouse or whether the supported spouse has become self-supporting.  Before the court will modify a permanent spousal support order, it must analyze all the factors under Family Code 4320, which is the same code section that the court must consider when ordering the original spousal support order upon the parties’ dissolution.  Our experienced Orange County spousal support attorneys can explain your rights and obligations as well as assist you in getting your spousal support order terminated.

My ex-spouse’s income greatly increased after our divorce – can I request an increase in spousal support?

As a general matter, the award of spousal support is calculated based on the standard of living during marriage.  An increase in your ex-spouse’s standard of living by virtue of an increase in his or her income does not change the standard of living that existed during the marriage.  This means that if your ex-spouse’s income greatly increases after your divorce is finalized, your entitlement to spousal support will probably not be increased.  It is important that a spouse in need of permanent spousal support receive a fair spousal support order at the time of the parties’ dissolution judgment, because a change of circumstances will be required to establish a prima facie basis to modify a permanent spousal support order.

Even though I work, can I still request spousal support?

Yes. The court considers factors such as the parties’ incomes and abilities to pay when determining spousal support.  The fact that you work and receive income may lower the amount of spousal support your spouse will be required to pay, however, it does not preclude you from requesting it.  Because the court is given considerable discretion in ordering temporary and permanent spousal support, the assistance of an attorney is helpful to defend your rights and ensure that any award of spousal support is fair.

My spouse refuses to work – what can I do?

Because the court considers each party’s income in determining the spousal support order, the court may impute income in cases in which one spouse does not work or refuses to work.  The amount of income “imputed” to the unemployed spouse is determined by submitted evidence to the court that shows that spouse’s earning ability or capacity.  This means that the court will attribute income to a spouse who is not working for the purposes of determining spousal support.  Either party to a divorce action may also request a vocational evaluation to determine whether the unemployed spouse is able and/or has the opportunity to work.  Several other helpful methods to try and move a spouse to become gainfully employed is to file a motion and ask the court to issue a Gavron warning to the unemployed spouse, or order job contacts.  A Gavron warning is a warning given by the court to an unemployed spouse which sets forth, on the record, that the policy of the State of California is that all persons should try to become self sufficient and if that spouse does not have a good faith effort to become self sufficient, the court will impute income at a later date.  The court may also order a spouse to provide the court and/or the other party with proof that they made certain job contacts, such as sending resumes, participating in interviews, and so forth.  Usually the court will order five to ten job contacts per week and the court will order the unemployed spouse to report the job description, salary, and identification of the person contacted.

What do I have to prove for the court to impute income?

Generally, you must demonstrate that the party has the ability and opportunity to work at a certain level.  A spouse may request the court impute income to the other spouse if they are unemployed or not working to their capacity (i.e. “underemployed”.)  Previous case law required the employed spouse to prove that the other spouse had a willingness to work, but that requirement has been subsumed in the other two elements.  Either party may also request the appointment of a vocational evaluator to determine the other party’s earning ability, and the court may do so based on California Evidence Code 730.  Where it is proven that a spouse at least has the ability and opportunity to become gainfully employed, the court will presume that he or she can earn at least the proven wage and impute that amount for the purposes of calculating spousal support.  Imputation of income can be ordered against either spouse, whether they are the obligor or payee of spousal support.

What is a wage garnishment?

Under California law, child and spousal support obligations can be paid through a wage garnishment, also called a wage withholding order, which occurs where part of the spousal support obligor’s salary is paid directly to the supported party.  Wage garnishments are common way to ensure that support obligations are timely paid and for spousal support, such a wage garnishment must generally be authorized beforehand by the court.