Temporary vs. Permanent Spousal Support

One of the most complex issues in any family law case is spousal support.  In order to simplify the issue, the courts break spousal support down into two component parts: temporary spousal support and permanent, or long term, spousal support.

Temporary spousal support is generally awarded near the beginning of the case at the request of either party. The amount is generally determined by the same guidelines as child support using a computer software program. The current income from each party, if any, is placed into the software program, and a guideline temporary spousal support award is determined.

Long term, or permanent spousal support, is not based on a computer program but on various factors under the California Family Code. Considerations include the assets and debts of each party, the earning capacity of each party, the marital standard of living, the age and health of the parties, and any other factor the court deems relevant. The duration of spousal support is often tied to the duration of the marriage.

How Long Does Spousal Support Last?

For marriages of less than ten years, spousal support is generally awarded for one half the length of the marriage. For marriages of greater than ten years, known as marriages of long duration, the court will generally maintain jurisdiction, or power, over spousal support until the death of either party or the remarriage of the supported party. This does not mean that spousal support in long marriages will last forever. The court has authority to order a step-down and to reduce or terminate spousal support based on a change in circumstances that may include, but not be limited to, the cohabitation of the supported party or the age 65 retirement of the supporting party.

Although not required in marriages of long duration, it is customary for a court, upon request, to order the supported party to make efforts to become self-supporting within a reasonable period of time. In addition, it is possible to request and obtain an order to subject the supported party to a vocational examination in order assess the earning capacity of a spouse who is unemployed or under-employed for purposes of permanent, or long term, spousal support.

Why Should You Negotiate a Spousal Support Settlement?

Because the court has such broad discretion, or decision-making authority, over permanent spousal support, the outcome at trial is far more uncertain than in the case of temporary spousal support. As a result, a negotiated settlement of permanent spousal support often makes sense in eliminating the uncertainty associated with litigation, and reducing the exposure of each party to a potentially adverse result at trial.  In many cases, an award of property can be used in lieu of spousal support in order to effectuate a buy-out.  It is important to consult with an attorney as early in the process as possible in order to assess risks, strategies and possible resolutions to this critical issue.

- Matt Bogosian

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