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Family Law

Divorce - How Does The Process Work?

Domestic Violence

Spousal Support

SPOUSAL SUPPORT

Two issues arise with regard to spousal support:

1) The amount of spousal support and the duration of spousal support.
2) The duration of spousal support is closely linked to the length of the marriage. Frequently, practitioners speak of the 'rule of thumb' that spousal support will last for one-half the length of the marriage.

The duration of spousal support is left to the sound discretion of the court within certain general equitable principals and guidelines most often set forth in the common law case histories. However, in marriages of less than ten years, the statute provides a presumption that support should be granted for half the length of the marriage. The California legislator has enacted a statute which indicates that when permanent support is established at the time of trial, it is an abuse of discretion for the court to set a future termination date if the marriage is of lengthy duration. The statute goes on to indicate that any marriage of ten years in duration is considered a lengthy marriage. As a practical matter, in the late 1990s it appears that spousal support duration is linked to a transition period from married life to single life. The circumstances vary from person-to-person, but the courts tend to disfavor "lifetime support.

The court has a broad discretion in ascertaining the amount of spousal support as well as its duration.. Some California counties have adopted a guideline which suggests the appropriate range of spousal support on a temporary basis. Many counties do not allow the guideline to be the sole indicator of the amount of permanent spousal support. California State law provides that spousal support is determined by a careful review of a number of factors. The controlling statute states as follows:

4320. In ordering spousal support under this part, the court shall 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) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.

(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 4325.

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

TERMINATION OF SUPPORT

One should know that there is no such thing as "lifetime spousal support." In many cases where the court has ordered a long-term support obligation, it is still possible to step-down and ultimately terminate spousal support over time. It is important for the supporting spouse to ensure that at the time of Judgment that the court issue a "Gavron Warning" in which the court states that it is the policy of the State that the supported spouse make efforts to become self-supporting within a reasonable period of time. Family Code Section 4320 (k) provides "The goal that the supported party shall be self-supporting within a reasonable period of time.

In short-term marriage this is presumed to be one-half the length of the marriage. Clearly, Spousal Support is not meant to last forever. Therefore, the supporting spouse has some hope of terminating spousal support even in marriages of long duration.

CHANGE OR MODIFICATION OF SUPPORT ORDERS

Even in a marriage of long duration it is generally possible that the court will terminate spousal support after a "reasonable period of time." The court will often issue a "Gavron Warning" which provides that the supported spouse must make reasonable efforts to become self-supporting within a reasonable period of time and that failure to do so may be a grounds for terminating support. A "Family support" order may be modified to separate orders for child and spousal support where there has been a change of circumstances justifying increased child support.

Modification of Spousal Support Orders:
Spousal support awards and agreements are modifiable throughout the support period except as to amounts accrued prior to filing of application for modification and except as otherwise provided by agreement of the parties. However, unlike child support, the court's continuing power to modify spousal support is dependent on the terms of the court's order. Unless jurisdiction to award support has been reserved, postjudgment spousal support is limited by the stated duration of the order. [Ca Fam §§ 3603, 3651(c), 4333, 4335]

Modification of Family Support:
A "Family support" order may be modified to separate orders for child and spousal support where there has been a change of circumstances justifying increased child support.