SPOUSAL SUPPORT (ALIMONY)
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General California Spousal
A spousal support award is not mandatory
in dissolution or legal separation proceedings in California.
Quite the contrary, courts have discretion (within statutory
parameters) to deny spousal support altogether or to limit it
in an amount and duration that reflects the ability of both
parties to provide for their own needs.
The propriety of a California alimony
award (whether to order it and, if so, its terms) is judged
broadly by the parties' "circumstances" in reference
to the standard of living established during their marriage
and their respective needs and abilities to pay. [Ca Fam §§
The court is bound to consider 14 statutory
factors in making a California spousal support order (Ca Fam
§ 4320(a)-(n)). But so long as the statutory factors are
considered and weighed (as applicable in a given case), the
ultimate decision--as to amount, duration and whether to retain
spousal support jurisdiction--rests within the court's broad
Whereas child support awards facilitate
a uniform purpose (significantly, that children share in their
parents' standard of living, spousal support necessarily serves
varying functions, depending on the parties and the underlying
facts and circumstances. For that reason, the Legislature has
not codified any particular purpose of the award.
In evaluating the parties' respective
needs and abilities to pay, the court cannot engage in speculation.
Its order must reflect the present facts and circumstances,
based on evidence in the record and inferences reasonably drawn
therefrom at the time of the hearing. "[A]n order for spousal
support must be based on the facts and circumstances existing
at the time the order is made." [Marriage of Tydlaska (2003)
114 Cal.App.4th 572, 575, 7 Cal.Rptr.3d 594, 595]
Relevant Factors In Making
California Spousal Support Orders:
In exercising their broad discretion
on the question of spousal support, trial courts must consider
and weigh several factors prescribed by Ca Fam § 4320.
"Permanent" spousal support orders that do not reflect
an independent consideration and weighing of all of the statutory
circumstances (as applicable to the particular case) are reversible
for abuse of discretion.
Note: These principles do not apply with
regard to temporary orders issued at the outset of the action
because temporary orders do not have the same purpose as perminent
Because the factual and equitable circumstances
in each case are unique, the § 4320 factors necessarily
cannot be given equal weight from case to case. Determining
the weight to be given each of the statutory factors in a particular
case, in order to arrive at a "just and reasonable"
support award (Ca Fam § 4330(a)), is "extraordinarily
difficult." It is a matter committed to the trial court's
In approaching the weighing process,
courts must begin with the general premise that the decision
to award spousal support and, if so, the amount and duration,
must be based on the standard of living established during the
marriage. [Ca Fam § 4330(a)]
Additional specific circumstances courts
must consider in the spousal support weighing process are prescribed
by Ca Fam § 4320, as developed in the sections below. [See
Ca Fam § 4320--"In ordering spousal support . . .
, the court shall consider all of the following circumstances
. . .":
1. Ability to maintain marital
standard of living in light of earning capacities: The extent to which the parties' respective earning capacities
are sufficient to maintain the standard of living established
during the marriage (Ca Fam § 4320(a)).
2. Contributions to other
spouse's education, training, etc.:
The extent to which the supported spouse contributed to
the other spouse's attainment of an education, training,
career position or license. [Ca Fam § 4320(b)] Section
4320(b) is a companion to Ca Fam § 2641, which creates
a right of reimbursement for community contributions to
one spouse's education or training that "substantially
enhances" the spouse's earning capacity.
3. Supporting spouse's ability
to pay: The supporting spouse's ability to pay
spousal support, taking into account his or her earning
capacity, earned and unearned income, assets, and standard
of living. [Ca Fam § 4320(c)]
Note: A spousal
support order must be consistent with the supporting
spouse's ability to pay as determined by his or her
circumstances at the time of the support hearing--i.e.,
the obligor's present (not past or future) circumstances
(current income/cash flow, assets, earning capacity,
4. "Needs" in light
of marital standard of living: The needs of each
party based on the standard of living established during
the marriage. [Ca Fam § 4320(d)] "Need" includes
more than "bare necessities of life." But §
4320(d) expressly codifies well-established case law consensus
that "need" must also be judged in terms of the
parties' station in life during marriage and before separation.
5. Parties' assets and debts: The parties' respective assets and obligations, including
the separate property of each. [Ca Fam § 4320(e)] Thus,
aspouse's separate estate (including assets allocated to
each as a result of the community property division)--and
the reasonable income potential therefrom--may require the
"withholding" of support altogether or a termination
of previously-awarded support. [Ca Fam § 4321(a)]
6. Duration of marriage. [Ca Fam § 4320(f)] The length of the parties' marriage
bears both on the "need" for support (whether
it should be ordered) and on the amount and duration. The
longer a spouse has been out of the job market on account
of the marriage, the stronger the case for granting support;
by the same token, a relatively short marriage can, depending
on the other § 4320 factors and the "totality
of the circumstances," offset alleged "need"
and justify a lower level of support and/or a shorter support
7. Employability of custodial
spouse vs. impact on children: The ability of the
supported spouse to engage in gainful employment without
interfering with the interests of dependent children in
his or her custody. [Ca Fam § 4320(g)] Section 4320(g)
recognizes the overriding public policy concern for the
welfare of the parties' minor children. Theoretically, e.g.,
weighing all relevant circumstances, the needs of young
children may justify indefinite spousal support to a custodial
parent even after a relatively short marriage.
8. Age and health of the
parties. [Ca Fam § 4320(h)] On balance and
after weighing all of the § 4320 factors, age and health
may warrant either an extension or withholding of support.
Age and health considerations are also particularly relevant
to the question of duration of support.
9. History of domestic violence: Documented evidence of any history of domestic violence
(as defined in Ca Fam § 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. [Ca Fam § 4320(i)]
10. Tax consequences: The immediate and specific tax consequences of spousal support
to each party (e.g., who pays the taxes, who gets the deduction,
what effect on net income). [Ca Fam § 4320(j)]
11. Relative hardships: "The balance of hardships to each party." [Ca
Fam § 4320(k)] This factor seems to underscore the
court's obligation to consider and weigh all of the §
4320 circumstances in determining the appropriate amount
and duration of spousal support.
12. Goal of self-support: "The goal that the supported party shall be self-supporting
within a reasonable period of time." [Ca Fam §
4320(l) (e)] Except in marriages of long duration (as described
in Ca Fam § 4336, a "reasonable period of time"
within which to achieve the goal of self-support "generally
shall be one-half the length of the marriage." [Ca
Fam § 4320(l)]
13. Spousal abuse conviction
(mandatory factor for support reduction/termination): The criminal conviction of an abusive spouse is a mandatory
factor to be considered in making a reduction or termination
of spousal support in accordance with Ca Fam § 4325.
[Ca Fam § 4320(m)]
14. Other "just and
equitable" factors: "Any other factors
the court determines are just and equitable." [Ca Fam
§ 4320(n)] This final factor is a "catch-all,"
clarifying the court's authority to consider any other circumstances,
although not expressly codified, bearing on the propriety
of awarding support and, if so, its amount and duration.
Modification Of Spousal
If the supported party is no longer in
need, or a detrimental change in the obligor party's needs or
ability to pay outweighs the other's need for support, proceedings
to terminate (or reduce) support can be brought on the basis
of "changed circumstances".
Further, provided the obligee was aware
of an expectation that he or she become self-supporting (or
reasonably endeavor to contribute to his or her support), support
might be terminated on the basis of the obligee's failure to
make good faith efforts toward self-sufficiency within a reasonable
period of time. [See Ca Fam §§ 4320(l), 4330(b)]
Moreover, in some cases, a modification
order terminating open-ended support may even be warranted where,
after considering and weighing the then-applicable Ca Fam §
4320 factors, the court deems it "just and equitable"
to do so despite the absence of factually changed circumstances.
[Marriage of Baker (1992) 3 Cal.App.4th 491, 494, 4 Cal.Rptr.2d
Termination Of Spousal
a. Fixed-term orders: Spousal support orders for a fixed duration terminate at the
end of the period specified in the order unless the court retained
jurisdiction in its most recent order to extend the obligation.
[Ca Fam § 4335]
However, except upon the parties' written
agreement to the contrary or a court order terminating support,
the court retains spousal support jurisdiction indefinitely
where the marriage has been of "long duration."
b. Contingent orders: An obligation to pay spousal support for a contingent period
of time terminates on the happening of the specified contingency.
[Ca Fam § 4334(a)]
c. Remarriage/death: Unless the parties have "otherwise agreed" in writing,
a court-ordered spousal support obligation terminates upon either
party's death or the supported party's remarriage. [Ca Fam §
California Spousal Support
The parties may - and are encouraged
to - enter into a written stipulation (agreement) on spousal support
If the parties cannot agree, visitation
orders may be made at any time after the filing of an underlying
divorce, paternity, or domestic violence action and may be modified
at any time until the chilf(ren) turn eighteen. In contested
cases, they are most commonly made:
At the time of the filing of the
initial documents in a "Temporary Restraining Order"
Within a few weeks of the filing
at a hearing on application for "Order To Show Cause"
At the time of trial
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