by Aaron Dishon, Esq.
Two key issues of importance are the amount and duration of spousal support.
The duration of spousal support is closely linked to the
length of the marriage. Frequently, practitioners speak of
the 'rule of thumb' that spousal support will last for
one-half the length of the marriage.
The duration of spousal support is left to the sound
discretion of the court within certain general equitable
principals and guidelines most often set forth in the common
law case histories. However, in marriages of less than ten
years, the statute provides a presumption that support
should be granted for half the length of the marriage.
The California legislator has enacted a statute which
indicates that when permanent support is established at the
time of trial, it is an abuse of discretion for the court to
set a future termination date if the marriage is of lengthy
duration. The statute goes on to indicate that any marriage
of ten years in duration is considered a lengthy marriage.
As a practical matter, in the late 1990s it appears that
spousal support duration is linked to a transition period
from married life to single life. The circumstances vary
from person-to-person, but the courts tend to disfavor
The court has a broad discretion in ascertaining the
amount of spousal support as well as its duration.. Some
California counties have adopted a guideline which suggests
the appropriate range of spousal support on a temporary
basis. Many counties do not allow the guideline to be the
sole indicator of the amount of permanent spousal support.
California State law provides that spousal support is
determined by a careful review of a number of factors. The
controlling statute states as follows:
4320. In ordering spousal support under this part, the court shall
consider all of the following circumstances:
(a) 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.
(b) 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.
(c) 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.
(d) The needs of each party based on the standard of living
established during the marriage.
(e) The obligations and assets, including the separate property,
of each party.
(f) The duration of the marriage.
(g) 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.
(h) The age and health of the parties.
(i) Documented evidence of any history of domestic violence, as
defined in Section 6211, between the parties, including, but not
limited to, consideration of emotional distress resulting from
domestic violence perpetrated against the supported party by the
supporting party, and consideration of any history of violence
against the supporting party by the supported party.
(j) The immediate and specific tax consequences to each party.
(k) The balance of the hardships to each party.
(l) 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
(m) 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 4325.
(n) Any other factors the court determines are just and equitable.