Family Code section 4301 establishes a statutory duty of support between married couples and registered domestic partners, however, it requires that a court first order support for this support obligation to be enforceable.  Support orders are obtained by stipulation and agreement, or through contested support hearings.  Support awards may be ordered as temporary support or they may be issued when a Stipulated Judgment or Decree of Legal Separation is entered.  Different rules apply to how temporary support is calculated as opposed to long-term support.

Temporary spousal support is intended to help the lower income earning party replicate the marital standard of living for a period of time sufficient for the spouse to increase their income during the time of physical separation.  It has little to do with the length of the marriage and tends to be higher than the amount ordered in the Stipulated Judgment.

In the determination of temporary support, Courts focus upon the historical income and expenses existing pre-separation – typically for the prior twelve months.  Each party is required to submit an Income and Expense Declaration (Form FL-150) prior to the hearing.  Most California counties have formulas that determine the amounts for temporary spousal support.  DissoMaster is commonly used to calculate support.  Some key figures required to run the initial calculations include (but are not limited to) monthly gross income, monthly healthcare costs, self-employment income, mortgage interest deductions, property tax deductions, work related expenses not reimbursed by an employer, childcare costs, and any mandatory pre-tax wage deductions.

If a party is a self-employed spouse, their net pre-tax earnings must be determined after deducting business expenses.  This can be a complex area, because what is deductible for purposes of Schedule C accompanying a tax return is not binding upon California courts for purposes of figuring support. In other words, what is deductible for IRS purposes may be added back for support purposes.  Only certain expenses matter for purposes of temporary support in California. What does not matter are most personal expenses (like utilities and credit card debt).

In long term marriages or domestic partnerships, typically in excess of ten years, spousal support is not determined by a guideline formula but instead by Family Code section 4320, which lists a number of factors that Courts must examine.  In some cases considering these factors results in a lower support entitlement or obligation than at the temporary stage.  However, the chief considerations are: (1) the marital standard of living established during the final years of the marriage, (2) the needs of the supported party, (3) the ability of the higher earner to pay, and (4) the ability of the supported party to find employment or increase their current income.  The law has expanded to require that Courts evaluate equity in assets that might have been used to spin off an income but for the investment decisions of the spouse who controls that asset, even where the investment is passive and there is no taxable return or income stream from such investments.

A payor spouse’s “new partner’s income” from either remarriage or cohabitation is generally irrelevant for purposes of setting either temporary or permanent support.  However, cohabitation by the supported spouse may create a presumption that their need for spousal or partner support has been reduced.  Remarriage of a payee spouse, or a new domestic partnership will terminate the payor’s spousal support obligation, as will the death of either party.