Divorce and Spousal Support in California

 

Family Code §4300 addresses the duty of each spouse to support the other. This section simply states: “Subject to this division, a person shall support the person’s spouse.” The requirement for reciprocal support is very clear. The court can even require one spouse to support the other from his/her separate property, subject to the right of reimbursement, in the event there is no community or quasi-community property available. In the event one spouse applies to Los Angeles County where they reside for assistance, Los Angeles County, on behalf of the obligee spouse, may bring an action against the obligor spouse for reimbursement and future support of the obligee spouse, if this issue has not been addressed and/or resolved as part of the dissolution process.

As discussed, Spousal support may be temporarily ordered in an effort to maintain the status quo during a “pending” dissolution, legal separation or annulment. The pending period is from the date the petition is filed until an appeal, or the time for appeal has passed. Temporary spousal support is typically that amount which is ordered after Request for Hearing or by Stipulation during the pendency of the matter.

Permanent Spousal support is support which is ordered, typically as part of a judgment, for either a finite period of time or an infinite period of time, usually with some qualifications and/or conditions. The court is required to review and make specific factual findings with respect to the marital standard of living, as well as the assets and debts of the parties. In fact, the court will take this issue under consideration, whether or not they are asked to do so by the moving party.

Family Code §4320, contains a concise list of circumstances and factors which the court must consider in awarding permanent spousal support. They are (paraphrased) as follows:

  • The extent to which each party’s earning capacity will maintain the standard of living established during the marriage. The court must take into account
  • what might be required for the supported party to develop or acquire marketable skills and
  • the extent to which his or her earning capacity is or will be impaired by any periods of unemployment during the marriage to devote time to domestic duties.
  • The extent to which the supported party contributed to the supporting party’s attainment of an education, training, a career position, or a license.
  • The supporting party’s ability to pay, taking into account his or her earning capacity, earned and unearned income, assets, and standard of living.
  • Each party’s needs based on the standard of living established during the marriage.
  • Each party’s assets (including separate property) and obligations.
  • The duration of the marriage.
  • The supported party’s ability to be gainfully employed without interfering with the interests of dependent children in his or her custody.
  • Each party’s age and health.
  • Documented evidence of any history of domestic violence (see FC§6211) between the parties, including emotional stress resulting from the violence.
  • The immediate and specific tax consequences to each party.
  • The balance of the hardships to each party.
  • The goal that the supporting party shall be self-supporting within a reasonable period of time.
  • The criminal conviction of an abusive spouse when the court is reducing or eliminating a spouse support award under FC§4325.
  • Any other factors the court determines are just and equitable.

The court has an enormous amount of discretion with regard to permanent spousal support orders. Family Code § 4330 states:

(a) In a judgment of dissolution of marriage or legal separation of the parties, the court may order a party to pay for the support of the other party an amount, for a period of time, that the court determines is just and reasonable, based on the standard of living established during the marriage, taking into consideration the circumstances as provided in  2, commencing with Section 4320.

  1. b) When making an order for spousal support, the court may advise the recipient of support that he or she should make reasonable efforts to assist in providing for his or her support needs, taking into account the particular circumstances considered by the court pursuant to Section 4320, unless in the case of a marriage of long duration as provided for in Section 4336, the court decides this warning is inadvisable. (See section on Gavron warning,)

The court also has the discretion to deny support, taking into consideration the circumstances of the supported spouse and what is considered just and equitable. There are numerous court cases on which the court relies to make spousal support determinations. These cases are considered the foundation of spousal support awards and have served to further clarify FC§§ 4320-4330.

Family Code §4324 was amended effective 1/1/2013 to preclude an award of spousal supportto a spouse who has been convicted of a violent sexual felony. It states, in part, “[T]he court must consider the criminal conviction of an abusive spouse under FC§§4325 or 4324.5.” This revised language is the result of a 2012 case,Marriage of Freitas, (2012) CalApp Lexis 1039.

Length of Marriage

As referenced in FC§ 4320(f) duration of the marriage is the court factor to be considered. In re Marriage of Morrison (1978) 20 C3d 437, 143 CR 139, the court dealt with the issue of the duration of marriage. The trial court determined that the 28year marriage in Morrison qualified as a “lengthy” marriage. However, the court did not establish the definition of a lengthy marriage. Subsequently, the legislature amended Family Code §4336(b), which established a rebuttable presumption that a lengthy marriage is a marriage of ten years or more. There is a “burden of proof” requirement in this section and the court may take into consideration periods of separation during the marriage. The court also has the discretion to determine that a marriage of less than ten years is a marriage of long duration. Family Code § 4336(a) states that when a marriage has been of long duration, the court will retain jurisdiction indefinitely, unless the parties agree, in writing to the contrary or the court reserves jurisdiction with the intent that a change in circumstances can be shown in subsequent proceedings.

The legislature has noted that “Except in the case of a marriage of long duration as described in Section 4336, a ‘reasonable period of time’ for the 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 other factors listed in this section, Section 4336, and the circumstances of the parties.”

The court also makes the rebuttable assumption that spousal support may be made for one-half the length of the marriage in situations where spousal support is ordered, or where the court may retain jurisdiction.Although the obligation of support terminates on either party’s death, the court has jurisdiction to provide funds for the supported party, if the supporting party dies, by including in the support order a provision that there be an annuity or insurance policy purchased in an amount sufficient to meet the needs of the supported party, or requiring the supporting party to establish a trust for the supported party. Family Code §4360-, In re Marriage of Ziegler (1989) 207 CA3d 788, 255 CR 100.

In addition to the marital standard of living (FC§4320) and the length of the marriage, there are  components the court considers when determining long term spousal supportorders: 1) amount; 2) substantive stepdown; 3) jurisdictional stepdown; and 4) reservation of jurisdiction.

Amount

The amount of spousal support is determined by the factors established in Family Code §4320 above. Once the court has determined the marital standard of living, it applies the factors in FC§ 4320 when making a finding as to the long-term needs of the supported spouse.

Substantive Stepdown

The court has the discretion to make orders for spousal support whereby adjustments (usually reductions) or modifications will be made, often at specific periodic intervals. The court will retain jurisdiction to make these adjustments, with the ultimate emphasis on eliminating support entirely in the future. In other words, at some point spousal supportwill likely be terminated, and the court will determine the need to retain jurisdiction or alternatively, if jurisdiction will be terminated.

Jurisdictional Stepdown

The substantive and jurisdictional step downs are similar. The difference being that the jurisdictional step downs are usually established in the initial orders for spousal support, which give an estimate of how long the court’s jurisdiction will last.

Reservation of Jurisdiction

A reservation of jurisdiction recognizes that spousal support may or may not presently be necessary, but jurisdiction should not presently be terminated.

Cases relating to jurisdictional step downs and reservation of jurisdiction

 In re Marriage of Richmond (1980) 105 CA3d 352, 164 CR 381. The parties had a 16-year marriage. Wife was aged 46. Two years after the judgment was entered, Husband sought a termination due to his unemployment after two months. Wife had a Master’s Degree and was a Ph.D. candidate in German literature. The court determined that her earning potential was low.However, support was ordered for another three years. After three years, spousal support would be forever terminated and jurisdiction would terminate unless prior to that date Wife made a “showing of good cause” to extend spousal support beyond that date.

The Richmond Court did not violate the “Morrison” rule against terminating spousal support in a lengthy marriage, as the Richmond Court was postponing the support termination until a future date. Richmond “orders” do put the supported spouse on notice as to making a good faith effort to become self-sufficient. The burden of proof shifts to the supported spouse to show why support should be continued past the predetermined date.

A Richmond Order is often referred to as a typical “stepdown” order. The court will often structure the spousal support agreement with specific reductions in spousal support on specific dates, resulting eventually in support being reduced to zero. The parties will also have to agree whether the court will retain jurisdiction beyond that time. In the event the supported party wishes to extend those dates or request that a reduction not be made pursuant to the order, it is his/her responsibility to file a motion with the court prior to the “stepdown” date. The supported spouse must provide evidence of why there should not be a reduction.

In re Marriage of Morrison (1978) 20 C3d 437, 143 CR 139,the Supreme Court ruled that the trial court should not terminate jurisdiction over a long-marriage unless the “record clearly indicates” that the supported party will be able to adequately meet his or her financial needs at the time specified for termination of jurisdiction.

In re Marriage of Rome (1980) 109 CA3d 961, 167 CR 351, the trial court ruled that support be paid on a sliding scale based on Husband’s earnings. The court found that it was an “abuse of discretion” since the amount paid to Wife was totally under the control of Husband. The court determined that there should be periodic reviews to determine the earnings of Husband. This is often referred to as a Rome Review.

In re Marriage of Vomacka (1984) 36 C3d 459, 204 CR 568,the court found that “(O]rders providing for absolute termination of spousal support on a specified date are disfavored and will be overturned as an abuse of discretion unless the record clearly indicates that the supported spouse will be able to adequately meet his or her financial needs at the time selected for termination of jurisdiction.” This rule is particularly applicable to lengthy marriages.

The VomackaCourt also found the following: “[W]here there is an ambiguity in the language of a marital property agreement, it must be decided in favor of the right to spousal support.” Language in a spousal support order suggesting that modification of its terms will be permitted is routinely interpreted as a retention of jurisdiction of the court’s fundamental jurisdiction to modify and, upon a proper factual showing, to extend the spousal support provisions contained therein. These provisions should be kept in mind when preparing stipulations and/agreements, as they may affect the client’s future right to support or ability to request a modification or termination in the future.

In re Marriage of Borland (1989) 215 CA3d 1257, 264 CR 210,the court discussed the Richmond “orders.” The court concluded that if the “supported spouse exercises reasonable diligence, he or she will have become self-supporting by the date set for the support payments to end.” If the court finds that there was a failure to exercise reasonable diligence to become self-supporting, but that even if reasonable diligence has been exercised the supported spouse would still not have become fully self- supporting, the court possesses the discretion to extend the duration of the order and to fix the support in the amount the supported spouse would have required if reasonable diligence would have been exercised.

Family Code §4337 states: “A party’s spousal support obligation must terminate on either party’s death or the supported party’s remarriage, unless the parties agree to the contrary in writing.” However, of primary importance to the court in determining at what point, if any, spousal support should be modified or terminated (except upon death or remarriage of the supported party), will be the ability of the supported spouse to meet his or her financial needs at the time of the termination.

Applicable Spousal support Case Law and Circumstances for Consideration (FC§4320)

  • Marketable skills—The party requesting support must provide information about the marketable skills or lack of those skills. Does the party have any recent marketable skills? when was the last time the party worked, and/or what kind of education does the party have? Was there a short interruption in work history, or has the party not worked for a long period of time? Does the party have a high school diploma, GED, college post graduate education, and/or license or certification? Does the party have any disabilities that would preclude working?

The court may order a spouse to undergo a vocational review to determine the type of skills the spouse has, what kind of work is available at the skill, experience, or education level, and if the spouse will need additional training in order to become self-supporting. Or, conversely, if the spouse will ever become self-supporting. An order for vocational training requires a noticed motion filed by the supporting party and order good cause.

Failure to comply with an order for vocational training could result in sanctions.

(Family Code §4331(a)-(c).)Failure to exercise due diligence in seeking employment could result in denying further support. (In re Marriage of Mason (1979) 93 CA3d 215, 155 CR 35

  • Contribution to supporting party’s advancement in education, training, career license. This circumstance is interpreted broadly and is given much weight by the court in determining the length of Contributions made by a “homemaker” who was the primary caretaker of the children during the marriage, will be given the same weight of that of an employed spouse who contributed ordinary living expenses. “Credit” for these contributions is subject to Watts credits (In re Marriage of Watts (171 Cal App 3d 366.) The court may also consider whether one spouse worked and made contribution, the education and training of the other spouse, for instance, if Wife works as a paralegal while Husband attends law school, pays for books, tuition and other school-related expenses, Wife is entitled to reimbursement. In Re Marriage of Sullivan (1984) 37 CA3d 762 (See Appendix 6B.)
  • Supporting party’s ability to pay. The party’s ability to pay is a very important factor when considering long term support. If a party has the ability to earn money, the court may order support based on the earning capacity, which is also referred to asimputed income, to keep the supporting party from intentionally reducing their earn In re Marriage of Philbin (1989) 19CA3d 115, 96 CR 408 and In re Marriage Everett (1990) 220 CA3d 846, 269 CR 917,the courts held that the trial court may consider earning capacity, as opposed to actual earnings, only if it finds a deliberate attempt on the party of the paying spouse to avoid financial responsibilities. If there is a good faith effort to work or find work, then the court may not consider earning capacity. This is generally known as the Philbin Rule.

Earning capacity is defined in In re Marriage of Regnery (1989) 214 CA3d 1367, CR 243 as follows: 1) the ability to work, including such factors as age, occupation

skills, education, health, background, work experience and qualifications; 2) the willingness to work exemplified through good faith efforts, due diligence and meaningful attempts to secure employment; and 3) an opportunity to work which means an employer who is willing to hire. Regnery further clarified that “when ability and opportunity are present, and willingness is absent, the court has discretion to apply the earnings capacity standard.There are numerous cases which relate to this topic. The court has favorably and consistently ruled in a manner consistent with the fiduciary responsibility of the parties to one another. To that end, the court will, as long as it is feasible, require the supporting party to continue employment at the standard that was established during the marriage.

On the other hand, the courtmakes every effort to be fair to the supporting party. Being fair may require that the tax records and business records, of a self-employed person, for at least five years be used in determining the earning capacity. Actual income must be the basis for the determination. (In re Marriage of Rosen (2002) 105 CA4th 808, 130 CR2d 1.) The court will not require a person to work more hours than they would normally have to work in order to maintain the standard. The court will not only consider whether a party attempted to find work, but whether work was available in that field and available to the supporting party. The court may consider whether long term support will affect child support. The court also must determine if a modification or termination of spousal supportwill only minimally reduce the standard of living, that the supporting party may change jobs and reduce income. (In re Marriage of Meegan (1992) 11 CA4th 156, 13 CR2d 799.)

(4)Each party’s standard of living. The needs and “station in life” must be considered, rather than just the bare necessities. Thus, the actual expenditures of the parties during their marriage will likely be the controlling factor in determining the marital standard of living. The court also needs to look beyond the actual expenditures, as some parties may habitually live beyond their means, while others may live modestly, yet have substantial savings. A supported party who cohabitates with someone of the opposite sex leads to a rebuttable presumption that there is a decreased need for support pursuant to Family Code §4323. (In re Marriage of Spiegel (1972) 26 CA3d 88, 92, 102 CR613.)

(5)Each party’s assets and obligations (including separate property). In re Marriage of Epstein (1979) 24 C3d 76, 154 CR 413 the court addressed the issue of using separate property for spousal support. The Epstein Court held that all assets of a prospective supporting party, whether separate or community to be divided in the marital action, are available sources for long term support. The assets do not have to be in the party’s name, but they must be in the party’s control. Thus, child support and other obligations may affect spousal support. The court may also consider actual and potential income, which may include settlements, inheritances, or other windfalls.

In re Marriage of Dick (1993) 15 CA4th 144, 18 CR2d 743 is also a significant case with regard to spousal support, child support and attorney’s fees. In Dick,Husband purportedly hid assets, was in arrears for child support, and requested a modification (reduction) of spousal support,stating that he had no money to pay support and that wife did not need spousal support. The court is highly unlikely to reduce or terminate any support order when the supporting party is in arrears. It is essentially a penalty for having become delinquent with support payments. The courts want to send a message that

nonpayment of support (child and spousal) is not tolerated, and will not be rewarded by reducing or terminating current orders, even if there may be a valid reason to do so.

(6)The duration of the marriage. The court cannot solely base its decision to order support on the duration of the marriage, but must include all of the factors of Family Code §4320.

A marriage of short duration will find the court hesitant to order support unless there are many other factors such as the age of the children and the ability of the spouse to currently be self-supporting. Short term marriages are those most likely to find the court applying the “rule of thumb” and, if/when support is awarded, ordering support for one-half the length of the marriage. These situations will likely order the supporting party to comply with certain demands, such as obtaining employment once the children have reached a certain age, returning to school, etc. The court’s jurisdiction to continue support beyond that time will be unlikely.

A marriage of medium duration will usually find the court leaning toward retaining jurisdiction, with an open-ended term. The supported party will be admonished (given the Gavron warning) that they are required to become self-supporting.

A long-term marriage offers the court the most discretion and latitude based on all of the factors in Family Code §4320. Unless the court can clearly show that the supported party has the ability to be self-supporting by a specific date, it is unlikely that the court will establish a clear termination date for spousal support. The court will likely retain jurisdiction until either party dies or the supported spouse remarries.

(7)Ability to find gainful employment without interfering with the interests of dependent children when those children are in his/her custody. Although it is the goal of the State of California that a party become self-supporting, the court also must ensure that the custodial parent is able to attend to the needs of their child. The court found in Rosan (In re Marriage of Rosan (1972) 24 CA3d 885, 101 CR 295) that the supported party could defer seeking employment, as she had custody of the two minor children, one of whom had behavioral problems and special needs.

(8)Age and health. Support cannot be ordered on the basis of age and health alone. (In re Marriage of Wilson (1988) 201 CA3d 913, 247 CR 522)

Other criteria as set forth in FC§4320 must be considered in conjunction with age and health.

(9)History of Domestic Violence. Evidence of Domestic Violence must be documented, and include physical and emotional violence and distress. See also FC §6211.

10)   Hardships. Hardships must be considered effective January 1, 2002.

11)Goal to be self-supporting. Effective January 1, 1997, except for a marriage of long duration as described in Family Code § 4320, a supported party has a reasonable period of time to become self-supporting. Said reasonable time usually is considered to be one-half the length of the marriage. The court has the discretion to order support for a longer or a shorter period of time, based on the other factors in Family Code §4320.

The court is required to advise the supported spouse that he/she may be required to become self-supporting, in any spousal support order entered, unless the marriage is of long duration and the court determines the warning is not advisable. In re Marriage of Gavron (1988) 203 CA3d 705; 250 CR 148. Said notice must be incorporated in all stipulations, agreements, and judgments wherein spousal support is ordered and/or there is a reservation of jurisdiction over the issue of spousal support. There are no exceptions to this rule.

Of significance in the Gavron case was the court’s ruling with respect to giving the supported party notice that they must become self-supporting. The court ruled in Gavron as follows: “We recognize that it is in the best interest of both spouses and of society in general that the supported spouse become self-sufficient. Civil Code §4801(l)(l)(A), (currently FC§4320(n) expressly directs that in determining the amount and duration of spousal support, a court is to consider as a factor the supported spouse’s marketable skills and ability to engage in gainful employment. The Legislature intended that all supported spouses who are able to do so should seek employment and to work toward becoming self-supporting. Nonetheless, the trial court erroneously held that Wife’s failure to become employable or to seek training after so many years [shifts] the burden to her to demonstrate her continued need for support in light of her continued inaction in this regard.Wife cannot be penalized now, years x later, because of an apparent lack of judicial foresight in not forcing her to focus on the drastic legal and financial consequences of the thenrevealed expectation that she become self-sufficient.”

In re Marriage of Schaffer (1999) 69 CA4th 801, 81 CR2d 797,the court applied the language in this section, retroactively. The court denied spousal support to a wife who had unsuccessfully pursued an “unsuitable” career in social work. She did not seek other employment. The court stated: “The statutory guideline flies in the face of a reading of the material change of circumstance rule that would prevent a trial judge from looking at long-term patterns of job training and employability.”

In re Marriage of Khera& Sameer (2012) 206 CA4th 1467, 143 CR3d 81, the court applied Gavron to a previous Richmond order, stating that her allegation that the requirement to become self-supporting was an unreasonable expectation, since she had shown no attempt to become self-supporting.

12.)Criminal Conviction of Abusive Spouse. Effective January 1, 2002, Family Code §4325, raises the rebuttable presumption that if there is criminal conviction for domestic violence, by one spouse against another, within five years before or after filing the dissolution petition, the court may not make a spousal support award to the abusive spouse. The court may consider documented evidence of a history of domestic violence, among other things.

The court applied this circumstance in In re Marriage of Freitas (2012) Cal App Lex 1039, stating that the court “properly terminated an order for temporary spousal support to a husband” based on a prior domestic violence conviction (as codified in FC §4325).

(13)Any other factors the court deems just and equitable. In re Marriage of Cosgro(1972) 27 CA3d 424, 103 CR 733, the court, when addressing long term spousal support, may consider just about anything that bears on “present and prospective matters” relating to the lives and the needs of the parties. The income of a subsequent spouse or nonmarital partner cannot be considered when determining spousal support.

In re Marriage of Left (2012) 208 CA4th 1137, 146 CR3d 181, the court confirms that an actualmarriage must occur and not simply a “marriage-like ceremony” pursuant to FC §4331. Some of the considerations and the relative case law are as follows:

Support of third parties, such as education of an adult child (In re Marriage of Stein (1972) 27 CA3d 424, 103 CR 733) and (In re Marriage of Paul (1985) 173 CA3 913, 219 CR 318); education and needs of disabled child (In re Marriage of Spieg(1972) 26 CA3d 88, 102 CR 613.)

Suppression of standard of living during marriage in anticipation of an increase standard on completion of education or training. (In re Marriage of Watt (1989)21 CA3d 340, 262 CR 783.)

Need for household help and/or child-care while obtaining education or training in order to become self-supporting. (Marriage of Ostler & Smith (1990) 223 CA3d 3 Cal App 560.)

The court will not allow any modifications or terminations of spousal supportwhen a supporting party is in arrears for child support. (In re Marriage of Has (1993) 1 CA4th 1630, 16 CR2d 345.)

As previously stated, In re Marriage of Dick (1993) 15 CA4th 144, 18 CR2d 743 is also a significant case with regard to spousal support, child support and attorney’s fees. Dick also deals with the issue of a request for retroactive support. The court ruled that the supported party may request spousal support retroactively to the date the Petition was filed. The court is not mandated to order retroactive support, but is given the discretion to consider it. Most other issues may only be dated back the date the RFO (Request for Order) was filed, spousal support is the exception.

Court Orders & Considerations

As you can probably see based on statutes and some of the case law discussed above, Court orders with respect to spousal support can take many forms. Once the above code sections have been applied, the relevant case law reviewed, and the evidence introduced which supports each party’s position with respect to standard of living, length of marriage, needs, ability to pay, etc, the court can make any variety of orders based on statute and subsequent case law.

Always remember to draft spousal support documents which include any requiredprovisions, as referenced above, as well as from the perspective that spousal support may undergo frequent modifications or requests for termination.

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