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San Jose, CA 95125
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Redwood Shores Office
303 Twin Dolphin Drive, 6th Floor
Redwood City, CA 94065
As a general rule, spouses owe each other a mutual duty of financial support. After the spouses physically separate, and until they either settle their case or go to trial, a temporary spousal support order is usually agreed to by the parties or is issued by the court, so both spouses have the means to continue some semblance of the marital lifestyle. The courts do have discretion, however, to deny a spouse’s request for spousal support, if the court believes: (a) that spousal support is not necessary for the requesting spouse to maintain the marital standard of living; (b) the paying spouse is unable to afford to pay spousal support; (c) there is evidence that the requesting spouse also committed domestic violence against the other spouse; (d) the court believes that ordering one spouse to pay spousal support would be unfair. When spouses settle the spousal support issue or when a court holds a trial on the spousal support issue, they must consider the following factors:
Marital Standard of Living - The starting point in the weighing process is to determine the standard of living established during the marriage. This is sometimes characterized as “upper class,” “working class,” “low income,” or “impoverished.” The higher the standard of living during marriage, the more likely it is that spousal support will be available.
Ability to Maintain Marital Standard of Living - The next step is to decide whether the parties' respective income is sufficient to maintain the marital standard of living.
Marketable skills - The job market for each party, and whether the lower income earning spouse requires education and/or job training to become self-supporting, are additional factors to help determine the length of spousal support. The more education and/or job training that are required, the more likely it is that spousal support will be available.
Impaired Earning Capacity from Domestic Duties - Sometimes one party devoted time to raising a family. The longer that spouse was out of the job market, the longer it may take him or her to become self-supporting. When this factor is present, it is more likely that spousal support will be available.
Supporting Spouse's Ability to Pay - The higher income earner’s ability to pay spousal support is another factor. The more income that spouse earns, the more likely it is that spousal support will be available to the spouse.
Assets and Debts - The parties' respective assets and debts, including the separate property of each is another factor. If one spouse (presumably the higher income earning spouse) is paying debts for the other spouse (e.g., auto loan, home loan, credit cards, etc.), the less likely it is that spousal support will be available, so long as the higher income earning spouse continues to pay the debts of the other. Even then, however, a court could order spousal support to be paid and for the spouse receiving spousal support to pay his or her own debts.
Age and Health of the Parties - The age and health of the parties is a factor. If a spouse is retirement age or is otherwise unhealthy, it is presumed that he or she will not or cannot work full-time. If that is the case, spousal support may not be available.
Domestic Violence – When there is evidence of domestic violence between the parties, the court must determine if the spouse asking for spousal support was the abusive spouse. If the domestic violence resulted in, i.e. a criminal conviction for spousal abuse, there is a presumption that spousal support should not be given to that spouse.
Termination of Spousal Support - Spousal support orders in marriages that lasted less than 10 years may be terminated after one-half of the length of the marriage (from the date of marriage to the date the parties separated). In marriages that lasted longer than 10 years, spousal support will likely continue until the supported spouse is self-supporting.
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