I recently met with a very nice gentleman for a consultation. Unfortunately, after 12 years of marriage, he and his wife were in serious discussions about divorce, attempting to come to a resolution together about how to divide assets and property and how much spousal support he should pay her.
It wasn’t surprising to hear that they were having difficulty coming to a compromise. She requested a certain monthly amount for spousal support, and he was unsure about whether the amount was fair, whether he could afford it, and how long he would have to pay it.
He was hoping I could give him some good news. He had already resigned himself to the possibility of needing to “let a judge decide” if they couldn’t reach an agreement on their own. He thought there might be some sort of clean calculation that could be done, in a spreadsheet or with a computer program, where we could just punch in some numbers and find out what the judge was likely to order.
If only it were that simple! If it were just about math, reaching financial agreements during the dissolution of a marriage wouldn’t be so difficult and contentious. But it’s not just about math.
He had been the primary breadwinner throughout the marriage. She occasionally sold handcrafted jewelry that had brought in a small, inconsistent second income over the years. She had quit school a decade earlier to raise their children. There was no question he was going to be paying spousal support—and he wasn’t upset about it. He just wanted to know how much and for how long?
He thought he had heard somewhere that spousal support is usually paid for half the length of the marriage. I’ve heard this many times over the years, and it simply isn’t true. How a judge decides on the length of time and the amount is far more complex than that.
California Family Code section 4320 lays out fourteen factors a judge must consider in ordering spousal support. I encourage you to visit the actual text of the law, but for simplicity’s sake, here is a basic explanation of the 14 factors, as I explained them to him:
1. Does she have the earning potential to maintain the standard of living you provided during the marriage?
2. Did she put you through school or otherwise help you establish your career?
3. How much spousal support can you afford to pay? (This isn’t just about salary—it includes consideration of your earning capacity, earned and unearned income, assets, and standard of living.)
4. What are each of your needs based on your current standard of living?
5. What financial obligations, assets, and property belong to each of you?
6. How long were you married?
7. Can she engage in gainful employment without negatively affecting your children?
8. How old and how healthy are you both? (This question encompasses both physical and mental health.)
9. Is there evidence of domestic violence between the two of you or against your children?
10. What would be the immediate and specific tax consequences for each of you with the awarding of spousal support?
11. What would be the “balance of the hardships” for each of you? (Neither party is allowed to be a big winner while the other is a big loser.)
13. Has either of you been convicted of the crime of spousal abuse?
Now, I went out of order because now I want to point out two of the 14 items that are very important:
Item (L) is the one that many people misinterpret because it mentions “one-half the length of the marriage.” But when you read it in its entirety, you see it opens a very wide door:
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. [emphasis added]
In other words, the goal is NOT for one person to support the other person forever. There is an expectation that “within a reasonable period of time,” the person being supported will no longer need the support but will be “self-supporting.” And as a guideline, that period of time would be about half the length of the marriage. But—and this is a BIG but—the courts can make any determination they see fit.
And we all know couples where one person has been receiving spousal support for decades. It happens.
Then we’ve got item (M), the last factor the judge will consider–
14. Any other factors the court determines are just and equitable.
If this reminds you of being granted three wishes and using the third wish to wish for unlimited wishes, that’s because it’s very much like that.
As you can see, the courts have extremely wide discretion in making determinations about awarding spousal support. Judges MUST consider 13 factors and the last factor encompasses anything and everything else they might possibly want to include!
As you can imagine, the gentleman who came to me for help left with important information, but NOT with the comfort and reassurance he was seeking.
The advice I gave him is the same advice I give everyone who is considering a divorce–
If you and your partner can embrace a spirit of compromise, work out an agreement yourself rather than turn things over to a judge. Through a collaborative divorce process or a mediated divorce, both parties have more control and more ways to negotiate and reach a mutually satisfying outcome.
My experience is that not only will both parties be happier with the resolution, but they will both be more likely to hold up their end of the bargain later. That means less friction, less fighting, fewer follow-up court appearances, and much happier children.
If you’d like to discuss your personal situation and find out if collaborative divorce or mediation is a good solution for you, please schedule a consultation with me today.
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