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Can You Be Like Kelly Clarkson and Fight a Spousal Support Request?

Photo Credit: Frazer Harrison/Getty Images

A lot has happened for #KellyClarkson in 2020. The award winning “Stronger” star filed for divorce in June from Brandon Blackstock after 7 years of marriage. After Kelly won primary custody of her children, Brandon requested a whopping $301,000 per month in spousal support as well as $135,000 per month in child support, which would earn him $5.2 million per year. The cherry on top is his request for $2 million in attorney fees to cover his 7 attorneys. Does Kelly have to accept this? Not if she can balance the spousal support factors right.

There are two types of spousal support awards in California family law.

The first is temporary spousal support. This type of support lasts for the life of the divorce process. It is calculated using the income and deductions of the parties. Specialized software is used to make the calculations. Where applicable, temporary spousal support is calculated together with child support and the two types of support calculations influence each other. The aim of temporary spousal support is to maintain the status quo of the marital station. Temporary spousal support is usually higher than the second type of spousal support – permanent spousal support.

Permanent spousal support kicks into play after the divorce is finalized. Unlike temporary spousal support, the Court balances 23 factors set out in Family Code section 4320, among other authorities. In ordering spousal support under this part, the court must consider all of the following circumstances:

(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:

(1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.

(2) The extent to which the supported party's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.

(b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.

(c) The ability of the supporting party to pay spousal support, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living.

(d) The needs of each party based on the standard of living established during the marriage.

(e) The obligations and assets, including the separate property, of each party.

(f) The duration of the marriage.

(g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.

(h) The age and health of the parties.

(i) All documented evidence of any history of domestic violence, as defined in Section 6211 , between the parties or perpetrated by either party against either party's child, including, but not limited to, consideration of:

(1) A plea of nolo contendere.

(2) Emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party.

(3) Any history of violence against the supporting party by the supported party.

(4) Issuance of a protective order after a hearing pursuant to Section 6340 .

(5) A finding by a court during the pendency of a divorce, separation, or child custody proceeding, or other proceeding under Division 10 (commencing with Section 6200 ), that the spouse has committed domestic violence.

(j) The immediate and specific tax consequences to each party.

(k) The balance of the hardships to each party.

(l) 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.

(m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4324.5 or 4325 .

(n) Any other factors the court determines are just and equitable.

Is your head spinning yet? Those are a lot of things to consider! Even a casual glance at the statute shows that the Court’s evaluation of permanent spousal support is very touchy-feely with only one real mathematical component – the marital standard of living (factor d). As part of its analysis, the Court has to consider the income and expenses of the parties during the marriage and compare it to the current financial circumstances of the parties. Children are accounted for in the calculations. If the lower earning spouse is not living up to the “marital standard,” they might be able to collect spousal support with a favorable balancing of the other factors.

Brandon has a lot of explaining to do to justify the stupendous support figure he is pursuing. It is true Kelly earns a lot more than him, but does that inequality and their marital lifestyle really support that level of award? We’ll see what his 7 attorneys come up with.

How long can a person collect permanent spousal support? This again varies widely based on the circumstances of the parties. Generally, for a marriage of less than 10 years, the supported spouse will collect support for half the length of the marriage. In theory, Brandon will collect support for 3.5 years. For a longer marriage, support can last for a longer duration and even for a lifetime given the right circumstances.

Spousal support does not have to be fixed in amount and duration. The Court can set a fixed and unmodifiable amount the supported spouse will get for a certain period of time or the amount can vary based on the circumstances of the parties or on a schedule. For example, a supported spouse can collect $100 for five years, then $50 for the next five years and then see support terminated after that. If a Court terminates jurisdiction to order support, the supported spouse can never collect support again.

Of course, the parties can agree on a certain amount of support out of court, or even agree to mutually waive support. Don’t count on an amicable resolution for Kelly Clarkson, however. 2021 is going to involve a multi-million battle over how much support Brandon will collect.

A lot is at stake in fighting for spousal support or resisting a spousal support award. The divorce process can take a long time and a person’s ability to pay their bills during that time can hang in the balance of a support award. Similarly, a person’s financial security after the divorce process is over can depend on how successful they are in getting the right type of support award. As seen above, there are 23 factors to balance with permanent support. In arguing the law and facts, that is just the tip of the legal iceberg in making one’s case. Good legal representation matters! Schedule a free consultation with The Law Offices of Jane Migachyov now.

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