In divorce proceedings throughout San Diego, spousal support is often one of the most contested issues. There are two types of spousal support that a court can order: temporary spousal support and permanent spousal support. Temporary support is paid during the pendency of the divorce action between the date of filing the Petition for Dissolution and the final resolution of the case. Permanent support is paid after the end of the case either pursuant to the Court’s orders at trial, or as agreed upon by the parties in a Marital Settlement Agreement (“MSA”). “Permanent spousal support” is a misnomer because, although a spouse can be required to pay support for a significant period of time, he or she may not have to pay permanently. “Permanent” spousal support is modifiable by court order, and selecting the right divorce lawyer is essential.
The calculation of the amount of support paid differs depending on whether support is “temporary” or “permanent”. In ordering temporary spousal support the divorce attorneys and the Court will often use a program called “DissoMaster”. The program will provide a suggested amount of temporary support after the user inputs various data, including but not limited to: income for both parties, any monthly interest paid on a spouse’s residence, any property tax deductions, any health care deductions, and any deductions for support paid to a former spouse. DissoMaster is also used to calculate child support and, in that case, the user must input the number of children the parties share and the timeshare allocated between them.
In ordering permanent spousal support the Court will consider the factors listed in Family Code §4320. Under Family Code §4320, “in ordering spousal support…the Court shall consider…the extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage.” In order to make this determination, the Court shall take into consideration, “the marketable skills of the supported part” and the “job market for those skills”. A vocational examination may be necessary in divorce in San Diego in order to provide the Court with evidence regarding the marketable skills of a supported party and the job market for those skills.
Under Family Code §4331(a), “in a proceeding for dissolution of marriage or for legal separation of the parties, the Court may order a party to submit to an examination by a vocational training counselor.” Family Code § 4331(b) further provides that “the order may be made only on motion, for good cause…” Although “good cause” is not defined by the Code, presumably in any case where a spouse is seeking support or the spouse contesting support is able to work but is unemployed or underemployed, good cause exists. The threshold of “good cause” is low and thus most parties will agree to submit to a vocational evaluation.
In conducting a vocational evaluation, parties and their divorce attorneys will select an evaluator. The evaluator will interview the spouse who is being evaluated and conduct research on targeted job opportunities available to the spouse in his or her area. As divorce lawyers know, a vocational evaluation can be helpful because the evaluator may submit a report outlining the opportunities available for a particular spouse in his or her area. Further, the evaluator may give his or her opinion as to the earning capacity of the unemployed or underemployed spouse. The salary that the evaluator believes the spouse can be earning may be imputed to him or her when the Court calculates the appropriate support amount.
Please contact us if you would like to schedule a consultation with divorce attorney Nancy J. Bickford. Our firm can assist you with legal separation from your spouse, child custody and visitation, and other divorce related matters. Nancy J. Bickford is the only lawyer in San Diego representing clients in divorce, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 for more information about our divorce lawyers and family law practice.