Spousal support, also known as “alimony”, are the same thing. There are two main issues when it comes to spousal support:
1) Amount to be paid; and
2) Duration of the payments.
There are many different kinds of spousal support agreements. Some of the different types of spousal support agreements are as follows:
1) Mutual permanent waiver;
2) Reservation of Jurisdiction;
3) A certain amount paid for a certain period of time;
4) A certain amount paid for an indefinite period of time (“until further order of the court”);
5) An amount that decreases over a period of time until it reaches zero;
6) An order that is non-modifiable as to amount;
7) An order that is non-modifiable as to duration;
8) An order that is non-modifiable as to amount and duration;
9) An order that provides for a buyout of the other party’s rights to receive spousal support.
The ability to deduct spousal support was altered under the tax laws enacted by Congress in 2018, laws that many people refer to as the Tax Cuts and Job Act (TCJA). Under the old laws, spousal support was tax deductible by the payor and was taxable income to the recipient. Under the new laws, spousal support is not deductible by the payor and not taxable income to the recipient. Although the new laws were enacted in 2018, spousal support orders made before December 31, 2018 will be “grandfathered” in (i.e., if you have a spousal support order made before December 31, 2018, then spousal support can still be tax deductible by the payor and taxable income to the recipient).
How much spousal support should be paid?
In order to understand how much spousal support should be paid, you need to understand that there two different types of spousal support and the method the court uses for determining the amount of each type of support is very different. The two types of spousal support are: 1) temporary spousal support; and 2) long term spousal support. Temporary spousal support is the amount of support that is paid from the beginning of the divorce process until you reach a settlement or go to trial. In a litigated case, it can take a year or longer to get to trial. The spousal support that is paid after a settlement or after a trial does not have a special name, but we are going to refer to it as “long term spousal support”, even if the support may not be paid for very long.
Temporary spousal support:
Since temporary spousal support is not going to be in effect for a very long period of time, the court wants a quick and simple method for calculating the amount that should be paid. The courts use a software program to calculate temporary spousal support, just like they use a software program to calculate child support. Most of the computer software programs used for calculating child support will also calculate temporary spousal support. Much of the information previously provided in the discussion about child support also applies to temporary spousal support. Much of the information we provided in the child support section of this website is repeated here because some people using this website do not have children and will not have read the sections on child support. If you have already read the child support sections of this website, it won’t hurt to hear some of the same information a second time.
There are different spousal support calculation software programs available for purchase (DissoMaster; SupportTax; XSpouse; CalSupport Pro; etc.). They calculate both child support and temporary spousal support. They all produce about the same numbers. The variations in the numbers are typically small.
We are providing you with a sample temporary spousal support calculation printout. Click the “Court Forms” button on the homepage to go to our Court Forms Database where you will find our sample support printout. The printout is entitled, “DissoMaster Support Calculation”. Print the support calculation. It will be very helpful to have it in front of you as we go through the discussion about spousal support. Before we go over the sample support calculation printout, we need to discuss various options available to you so you can do your own support calculation.
The software program we used for the sample support calculation is called, “DissoMaster”. Many courts in California use this particular support calculation program to calculate both child support and temporary spousal support. You can purchase the Dissomaster program and similar programs on-line. For example, the DissoMaster program can be purchased through iTunes. However, you may find that the iTunes version of DissoMaster can only be used on an iPad. Click the following link to go to iTunes if you wish to purchase the DissoMaster program. [LINK]
You don’t have to purchase any spousal support calculation software. You can go to the court where you filed your divorce petition. Almost all courts have computer terminals available to members of the public with a support calculation program included. You can run your own support calculation for free at the court and print out a copy of the calculation.
If you have at least one minor child by your marriage, you can also go on-line to www.childsup.ca.gov/resources/calculatechildsupport.aspx. or Google “State of California child support calculator”. This is a site maintained by the State of California. The site is used to calculate child support, but if you have at least one child by your marriage, the site will calculate both child support and temporary spousal support. You can use this State of California calculator for free. The State of California calculator that is available on-line also includes detailed instructions on how to run the program. However, if you don’t have at least one child by your marriage, the State of California on-line calculator won’t calculate just spousal support. It will work for just child support or both child support and spousal support, but not just spousal support.
You should also be aware that the formula for calculating temporary spousal support varies from county to county. When it comes to child support, we have one statutory “guideline” formula that applies throughout the State of California. However, when it comes to temporary spousal support, different counties have different formulas and some of the formulas vary significantly. If you are using a support software program to calculate the amount of temporary spousal support, make sure you adjust the settings of the program for your particular county. Not all software programs include the ability to adjust the spousal support formula from county to county.
Long term spousal support:
The courts do not, or at least are not supposed to, use a computer program to determine the amount of long term spousal support. Instead, they are required by law to perform what divorce lawyers call a Family Code 4320 analysis. Family Code 4320 sets forth a list of factors that the court is required to take into consideration when deciding how much long term spousal support to award and the duration of that support. There are a lot of factors listed in Family Code 4320. Those factors include items such as the income of the parties, the assets of the parties, the age and health of the parties, the duration of the marriage, the marital standard of living, and many other factors. Click the “Court Forms” button on the navigation bar to go to our Court Forms Database where you will be able to find a copy of Family Code 4320 so you can read all of the factors the court takes into consideration when making decisions about the amount and duration of spousal support.
Long term spousal support is just the opposite of child support. When it comes to child support, the law says the courts must use a very precise “guideline” support formula. Judges have very little discretion. Judges are “locked in” and must order the guideline amount of child support, except for a few special circumstances. However, when it comes to long term spousal support, judges are given wide discretion to decide how much spousal support should be ordered and the duration of that support. A trial judge’s decision regarding long term spousal support won’t be reversed on appeal unless the judge abused his or her discretion. If you were to litigate the issue of guideline child support before 5 different judges, you should end up with about the same result. However, if you were to litigate the issue of long term spousal support before 5 different judges, you would likely get five very different results because the trial judge is not putting data into a computer program and pushing a button to see how much spousal support should be paid. Instead, the judge, at trial, listens to testimony on all the various factors set forth in Family Code 4320 and then makes a decision as to what amount of support should be paid and the duration of that support. The judge has an incredibly wide range of discretion when it comes to decisions about long term spousal support. This makes it very difficult for divorce lawyers to know how much long term spousal support a judge will award without actually putting on a trial that includes testimony about all of the Family Code 4320 factors.
How to deal with the differences between temporary spousal support and long term spousal support in an uncontested case:
You can’t know how the particular judge assigned to your case is going to decide the amount and duration of long term spousal support without going through an actual trial. So what do you do if you want to have an uncontested divorce? What you can do is look at the temporary spousal support number generated by the computer support software calculators. As set forth above, judges are not supposed to use the temporary spousal support software to determine long term spousal support. The law prohibits them from even using the temporary support number as a “jumping off point”. Regardless of the law, judges do in fact look at the temporary spousal support number. Lawyers negotiating spousal support also look at that temporary spousal support number. You at least need a starting point if you are going to be able to reach an agreement on long term spousal support for an uncontested case.
Most people are going to run a temporary spousal support calculation and then begin settlement discussions using that number. They may agree to adopt the temporary number as a long term spousal support number for settlement purposes. They may agree to discount that number or inflate the number. You can look at the temporary support number and then look at the Family Code 4320 factors and decide if the temporary support number should be increased or decreased. You can also schedule a consultation with a divorce attorney in your county and ask that attorney if most of the judges in your county tend to order long term spousal support in an amount that is about the same, significantly higher, or significantly lower than the temporary number.
Running the spousal support calculation:
Take a look at the sample spousal support calculation we have provided in our Court Forms Database. If you have not already printed it out, click the “Court Forms” button on the navigation bar to go to our Court Forms Database and locate the sample DissoMaster support printout. Print the sample and have it in front of you before you begin reading the following information on spousal support.
When you use a support calculation program, such as DissoMaster, there are lots of lines for entering data. You enter data for the father or husband in the “Father” column. You enter data for the mother or Wife in the “Mother” column. After you enter the data, you push “enter” on your keyboard and the program will give you the temporary spousal support number. The spousal support number will appear in the middle of the printout. The sample printout includes both child support and spousal support. We have highlighted the child support and spousal support numbers. If you look in the middle of the printout, you will see “Basic CS” and $863 next to it. The printout is telling you that the child support number is $863 per month. Below the child support numbers you will see “SS Payor” and “Father”. “SS” stands for spousal support. This is telling you that Father owes mother spousal support. Just below “SS Payor”, you will see “Alameda” and next to that, $213. Alameda is the county for which the support calculation was made (i.e., the sample software program used Alameda County’s local rule for determining the amount of temporary spousal support). As we previously mentioned, different counties use different formulas to calculate temporary spousal support. $213 per month is the amount of temporary spousal support that Payor (Father/Husband) would owe Mother/Wife in our sample calculation. The $1,076 number located just below the spousal support number is the total of the $863 child support plus the $213 spousal support.
When you run a temporary spousal support calculation with computer software, not all data entry lines will apply to your case. Skip those lines that don’t apply to your case. Each line on which you do enter data will impact the spousal support number. Although all data entries impact the calculation, there are a few entries that have the largest overall impact. The amount of income each person has is the most important factor in determining how much spousal support is owed. Although all of the entries are important, some of the more important data entries include how much each party pays for health insurance; how much each party contributes to their 401(k) account; do they have other children from other marriages or relationships living with them; and what is their income tax filing status. Some of the entries seem counter-intuitive. For example, if the husband has a huge mortgage payment, you would think he will get a break and pay less spousal support. However, the fact is that the big mortgage payment will cause him to pay a higher amount of spousal support. The support program sees the interest portion of the mortgage payment as a tax deduction and concludes that the husband has more after-tax income and therefore can afford to pay a higher amount of support.
Issues with income, overtime, and bonuses:
Again, much of the following information set forth below is a repeat of the information set forth in the child support sections. We are repeating the information because some people do not have children and did not read the information contained in the child support section of this website. The salary/wages number that goes into the temporary spousal support calculation program is the gross amount (i.e., the amount before taxes are taken out) and not the net paycheck amount. If you and your spouse get paid a base monthly salary, such as $4,000 per month, figuring out each party’s gross income for the support calculation is simple. If your spouse gets paid an hourly wage and works full time, there is also no real mystery as to the amount of their base salary or wages. Just take their hourly wage and multiply it by 40 hours per week, then multiply by 52 weeks in a year, and then divide by 12 months. If your spouse also earns overtime pay or commission income, you still use their base salary for the support calculation, but you then also use an overtime chart as explained below.
If you look at our sample spousal support calculation, you will see that the second page is called “Father Monthly Overtime Wages Report”. This can be used to calculate how much extra spousal support should be paid when the husband (father) receives additional overtime income or commission income. For example, if father/husband earns $500 of overtime income in a particular month, the chart indicates he should pay wife (mother) 19.42% of the gross amount of that income or $97 as additional spousal support. To get these numbers, you should be looking down the column entitled, “Father’s Gross Overtime” until you get to the $500 figure, then go across to the column entitled, “Alameda SS%” to where it says 19.42%. We have highlighted these numbers.
As previously explained, the sample support calculation printout says, “Alameda” because this particular case was run for an Alameda County case. On the Overtime Wages Report, the “SS%” stands for “spousal support percentage” (i.e., the percentage of the gross amount of Father’s overtime income that should be paid as additional spousal support).
The DissoMaster “Father Monthly Overtime Wages Report” can be expanded to go up to any amount of overtime income you want. The DissoMaster program also includes a “Mother Monthly Overtime Wages Report” for cases in which the mother/wife earns overtime pay. There is even a two-way report that can be used when both parties earn overtime pay.
Instead of monthly overtime, some people tend to get one or more large bonus payments per year. For these situations, the DissoMaster program also has a “Father Annual Bonus Wages Report”, and a “Mother Annual Bonus Wages Report”. The concept is the same as the Overtime chart. You have a base spousal support number calculated by using both parties’ base monthly income numbers. If they receive bonus income, then you can look up the percentage of additional spousal support they should pay or should refund, based on that extra income. So, no matter how much someone earns, they pay a fair amount of spousal support.
These overtime and bonus charts make it possible to have a fair spousal support order even when one or both parties have a job where it is difficult or impossible to predict how much they will actually earn in the future. So long as you can start with a base salary number, an amount that both parties feel comfortable they will earn at least that much, then you can use the overtime charts and bonus charts to capture a fair amount of spousal support on any extra income.
The spousal support software calculator you use may not include overtime charts or bonus charts. You can still come up with a formula that takes into account overtime pay and bonus pay. Run your support calculation using each party’s base monthly salary. Then, run the support calculation again, but add an extra $1,000 to husband’s income. Look at how much the spousal support increased. Then, calculate the “overtime” percentage. For example, assume husband’s base pay is $5,000 per month and Wife’s base pay is $1,500 per month. You ran the support calculation and the spousal support number is $924 per month. Now, run the same calculation, but with father’s income at $6,000 per month. The new spousal support number is $1,184 or an increase of $260. If you divide $1,000 by $260, you get 26%. You can make an agreement that father will pay mother $924 per month in base spousal support, and if he gets overtime income, commission income, or bonus income, he will pay mother additional spousal support equal to 26% of the gross amount of that extra income. This approach essentially accomplishes the same goal as complicated overtime and bonus charts, but it is much simpler to use and many people prefer this approach, even when they have access to support calculation programs that have overtime and bonus charts. Overtime and bonus charts are oftentimes confusing and cumbersome to use, particularly two-way bonus charts. It can be much easier if you use a flat percentage that will apply to all income a party earns over their base salary.
What do you do when there is no clear record about how much your spouse earns? Perhaps he or she works “under the table” or is self-employed and is not reporting all of their income or is writing off all kinds of personal expenses as business expenses. You and your spouse have to be honest about the true amount of each party’s income. If one person is not going to be honest, then you are probably not going to have an uncontested divorce and will be looking at a contested divorce, at least with respect to support issues.
You can use one of the computer terminals at the court for free to run your “temporary” spousal support calculation. If you have at least one minor child, you can go on-line and use the State of California child support calculator to also get a temporary spousal support number for free. You can purchase software such as DissoMaster to run your spousal support calculation. Another option you may want to consider is contacting a family law attorney in your area and pay that attorney to run the spousal support calculation for you. It should not take much time for an attorney to run the support calculation for you if you are properly prepared. You are not hiring the lawyer to do your divorce. You are simply paying the attorney for a half hour or an hour of his or her time to run the support calculation.
If you are going to hire an attorney to run the support calculation for you, be prepared. In order to be properly prepared, you should bring with you copies of your last two federal income tax returns, copies of last year’s W-2 forms for both you and your spouse, and copies of the most recent pay stubs for both you and your spouse. If you and/or your spouse are self-employed, bring a current profit & loss statement for your business. If you own a home, bring a current mortgage statement. Also, know how much both you and your spouse will each be paying for health insurance after the divorce is concluded. After the attorney runs the support calculation, have the attorney give you a printout of the calculation, including any overtime and/or bonus charts. You will need the printout. You may be able to find a local attorney that will offer an initial free divorce consultation and the attorney may be willing to run the support calculation for you as part of the free consultation.
Duration of spousal support:
We have two types of marriages when it comes to the duration of long term spousal support: 1) Short-term marriages (under ten years); and 2) Long-term marriages (over ten years). The duration of spousal support is very much related to the duration of the marriage. If you look at Family Code 4320(l), it states that when the court makes a decision about spousal support, the court shall consider the goal that the supported party shall be self-supporting within a reasonable period of time. A reasonable period of time for short-term marriages is generally one-half the length of the marriage. In other words, if you were married for less than ten years, the expectation is that the spouse receiving spousal support should be able to become self-supporting in a period of time equal to half the length of the marriage. For example, if you were married for six years, spousal support would typically be paid for 3 years. This “half the length of the marriage” rule does not apply to long-term marriages.
A lot of people have the mistaken belief that if they were married for ten years or more, they can collect spousal support “for life”. To illustrate why this concept is inaccurate, assume a couple are the same age and have been married for 40 years. Husband earns $200,000 per year and Wife earns $75,000 per year. Husband files for divorce at age 64 and both parties intend to retire a year later at age 65. When they divorce, all of their community assets and obligations will be equally divided, including all retirement benefits. After their divorce and retirement, both parties will be in similar financial circumstances, with similar assets and incomes. Spousal support may be paid by Husband for only a year or less until he retires, even though it was a 40 year marriage. He will not owe spousal support to Wife after he retires because their financial circumstances will be equal or nearly equal. Here is another example. Assume both parties were married for twelve years, had no children, are both in good health, and both are 37 years old, with full time jobs at the time of the divorce. If Husband earns $200,000 per year and Wife earns $75,000 per year, a court is almost certainly going to order Husband to pay Wife spousal support, but because the parties are both young, with no children, and both have decent jobs, a judge may decide the spousal support cuts off after six years (possibly less; possibly more). It is a discretionary decision and judges will consider all of the factors set forth in Family Code 4320 before deciding how long spousal support should be paid.
Spousal support will end upon the occurrence of certain events. If the payor dies, it ends. If the payee dies, it ends. If the payee gets remarried, spousal support ends. By law, spousal support terminates upon the death of either party or upon the remarriage of the recipient. See Family Code 4337.
Generally, if you have a long term marriage, it is very difficult to get the court to set a spousal support termination date, particularly when dealing with very long marriages. If you have a twenty year marriage and you go to trial, usually, no matter how much the payor wants a termination date, the court usually isn’t going to give one. The court will simply decide the amount of support that should be paid “until further order of the court”. This means it will be up to the payor to come back to court in the future, one or more times, as circumstances change, and ask the court to reduce spousal support until support is reduced to zero. If you are negotiating a settlement in connection with a long term marriage and the payor wants a termination date, usually, the payor is going to need make some kind of financial concession to get the termination date.
When it comes to the issue of the duration of spousal support, you and your spouse will need to have a discussion and reach an agreement, based on your particular circumstances. You may decide to go with the “half the length of the marriage rule” for a short-term marriage. You may decide to go with the “half the length of the marriage” rule for a long-term marriage. You may decide to go with a duration that is significantly shorter or longer than half the length of the marriage. You may decide to enter into an agreement whereby the amount of support is gradually stepped down over a period of time, which divorce lawyers refer to as a “Richmond Order”. You may decide that one of the options set forth below is appropriate.
Different varieties of spousal support orders:
We have set forth below nine different varieties of spousal support orders.
Mutual permanent waiver of spousal support:
Sometimes both parties earn about the same amount of money and no spousal support is owed by either party to the other. Sometimes, even though one party may be entitled to spousal support, they don’t want it. Perhaps the party entitled to spousal support intends to remarry right away so there is no real spousal support issue. If you both agree that neither one of you wants spousal support, it is very important that the language you use in your settlement agreement makes it absolutely clear that both parties are completely waiving their rights to receive spousal support. Simply saying that no spousal support shall be payable by either party to the other is not sufficient. You want your agreement to state that both Husband and Wife waive, now and forever, any and all rights to receive past, present, and future spousal support from the other party and that the court shall have no jurisdiction at any time or under any circumstances, regardless of any hardship to either party, to make an award of spousal support. You need the termination of jurisdiction language in your agreement if you want a permanent waiver of spousal support. If you don’t have this language in your agreement, you may find yourself paying spousal support down the road.
A permanent waiver of spousal support does not need to be mutual. Sometimes, one party will agree to a permanent waiver of their rights to receive spousal support, while agreeing to pay the other party spousal support.
Reservation of jurisdiction:
A permanent waiver of spousal support means you can never ask for an award of spousal support no matter what. A “reservation of jurisdiction” means you do not need spousal support at this time, but you want the court to reserve jurisdiction to make an award of spousal support at some time in the future upon a showing of changed financial circumstances. For example, say you have a good job when you and your spouse separate. You earn enough to be self-supporting. However, you are worried you may be laid off. If you are laid off, you will need spousal support, so you want your divorce settlement agreement to have a reservation of jurisdiction over the issue of spousal support. Here is another example. Perhaps you can support yourself at the time of the divorce, but you have health issues and you are concerned you may not be able to support yourself in the future if your health deteriorates. In these types of situations, you will want a “reservation of jurisdiction” when it comes to spousal support. The reservation of jurisdiction will allow you to come back to court in the future and ask for an award of spousal support if you need it.
Certain amount of support for a certain period of time:
An example of this type of agreement would be as follows: Husband shall pay Wife $213 per month, payable in full on the 1st day of each and every month, starting October 1, 2019 and ending September 30th, 2021, at which time Wife’s rights to spousal support shall terminate forever and the court’s jurisdiction to award Wife spousal support shall terminate.
Certain amount of support for an indefinite period of time:
An example of this type of agreement would be as follows: Husband shall pay Wife $213 per month, payable in full on the 1st day of each and every month, starting October 1, 2019 and continuing until further order of the court.
Certain amount of support that decreases over a period of time until it reaches zero:
An example of this type of agreement would be as follows:
Husband shall pay Wife $213 per month, payable in full on the 1st day of each and every month, starting October 1, 2019 and continuing until October 1, 2024, at which time the amount shall be reduced to $100 per month, and continue at the rate of $100 per month until September 30, 2029, at which time spousal support shall be reduced to zero.
Note that there is a big difference between reducing support to zero and terminating the court’s jurisdiction to award spousal support. If the agreement simply says support is reduced to zero, that leaves the door open for the recipient to ask the court to extend the duration of support.
Order that is non-modifiable as to amount:
An example of this type of agreement would be as follows:
Husband shall pay Wife $213 per month, payable in full on the 1st day of each and every month, starting October 1, 2019 and continuing until October 1, 2024, or further order of the court. The amount of support shall be non-modifiable regardless of any financial hardship experienced by either party.
A spousal support order that is non-modifiable as to amount can be very dangerous. If either party loses their job or becomes disabled due to accident or illness, the amount of support remains the same.
Order that is non-modifiable as to amount and duration:
An example of this type of agreement would be as follows:
Husband shall pay Wife $213 per month, payable in full on the 1st day of each and every month, starting October 1, 2019 and continuing until October 1, 2024. The amount of support and the duration of support shall be non-modifiable regardless of any financial hardship experienced by either party and the court shall not have any jurisdiction to modify the amount or duration of spousal support.
Again, a spousal support order that is non-modifiable as to amount and duration can be very dangerous because financial circumstances can change. If either party loses their job or becomes disabled due to accident or illness, the amount and duration of support remains the same.
Spousal support buyout:
Some parties dispose of the spousal support issue by means of a buyout. A lump sum of money is paid in exchange for the other party’s agreement to permanently waive any and all rights to receive spousal support. How much should be paid depends upon a lot of factors. What would be the total amount of spousal support paid if it were paid in monthly installments for half the length of the marriage? Take that total and start discounting it for various reasons (i.e., possibility that the recipient may re-marry; possibility that recipient may co-habit and thus have a decreased need for support; possibility that the recipient may die; possibility that payor may die; possibility that the recipient may start earning more money; etc.). At least in the past, when spousal support was tax deductible, if a lump sum were to be paid as a non-taxable payment, the lump sum would also be discounted due to income tax considerations.
In another section of this website, we go over a Judicial Council form and a Marital Settlement Agreement template that can be used to set forth your spousal support agreement. [See, “Judgment” and then the sub-topics “Agreement Template” and “Forms Approach”.]