Spousal Support
Temporary Spousal Support (Pendente Lite)
Temporary spousal support, sometimes called "pendente lite" support, is typically ordered to maintain the living conditions and standards of the parties as close to the status quo as possible pending trial and the division of the parties' assets and obligations. The court may look to the parties' accustomed marital lifestyle as the main basis for this support. A court may order any amount after considering the moving party's needs and the other party's ability to pay.
Key Rules and Restrictions
Domestic Violence: If a spouse has been convicted of domestic violence against the other spouse within five years, there is a rebuttable presumption against awarding temporary spousal support to the abusive spouse . Temporary support may not be awarded to a spouse convicted of attempting to murder or soliciting the murder of the other spouse.
Jurisdiction: The court has jurisdiction to award temporary spousal support to a party even after that party's default. Such an award is based on need, and the merits and procedural posture of the case are irrelevant.
Formulas: Court-adopted schedules or formulas for temporary support are not mandatory and should not be used in cases with unusual facts or circumstances.
Duration: The order remains in effect until judgment is issued, the case is dismissed, or the order expires on its own terms. The order is not enforceable during any period when the parties have reconciled and are living together.
Modification: Temporary spousal support may be modified without a showing of changed circumstances.
Retroactivity: The court may not retroactively modify a temporary support order. Fam. Code § 3603 establishes the filing date of the modification motion as the outermost limit of retroactivity.
Permanent Spousal Support
Permanent spousal support is awarded in a final judgment for a period the court determines is just and reasonable, based on the parties' standard of living established during the marriage, and taking into consideration the factors in Fam. Code § 4320, 4330(a).
Key Differences from Temporary Support
The purpose of permanent support is not to preserve the status quo. Calculation: The court should not use the amount of temporary support in determining the amount of permanent support. Fam. Code § 4320 clearly contemplates a "ground-up" examination of need for and appropriate level of permanent support. Computer programs cannot be used to calculate permanent support.
Mandatory Factors (Fam. Code § 4320)
The court must consider and weigh all of the 14 factors listed in Fam. Code § 4320. A failure to do so is reversible error.
- Marital Standard of Living: The court must consider the standard of living established during the marriage. The marital standard of living means the general station in life the parties enjoyed during their marriage it is a reference point against which the court may weigh the other statutory considerations.
- Earning Capacities: The extent to which each party's earning capacity is sufficient to maintain the marital standard of living. This includes impairment caused by time devoted to domestic duties.
- Contributions to Education: The extent to which the supported party contributed to the supporting party's attainment of an education, training, career position, or license.
- Ability to Pay: The supporting party's ability to pay spousal support, considering earning capacity, income, assets, and standard of living. A party's ability to pay encompasses assets as well as income.
- Needs, Obligations, and Assets: Each party's needs based on the marital standard of living, and their obligations and assets, including separate property.
- Bar to Support (Statutory): If there are no children, and a party has or acquires a separate estate sufficient for his or her proper support, no support may be ordered or continued for this party.
- Length of Marriage: The duration of the marriage. This factor is generally more relevant to the duration of spousal support.
- Goal of Self-Support: The goal that the supported party will be self-supporting within a reasonable period of time. Except in a marriage of long duration (generally 10 years or longer), a "reasonable period of time" is one-half of the length of the marriage.
- Domestic Violence (Bar to Support): A spouse convicted of attempting to murder or soliciting the murder of the other spouse is prohibited from receiving any permanent spousal support. An award of spousal support to a spouse convicted of a violent sexual felony against the other spouse is also prohibited.
10-14 - Other Factors: The court must also consider the age and health of the parties, documented history of domestic violence, tax consequences, the balance of the hardships, and any other factors the court determines are just and equitable.
Marital Standard of Living and Findings
The court may set spousal support above the actual standard of living if evidence shows the family's standard was low compared with available income, or if the parties maintained a low standard to enable one party to obtain an advanced degree with the expectation of higher future earnings.
The court must make specific factual findings regarding the parties' standard of living during the marriage. It should also find whether the support amount is sufficient to meet the reasonable needs of the supported spouse, considering the marital standard of living and the other Fam. Code § 4320 factors.
Specificity: Findings should be specific enough to assist in subsequent modification or appellate proceedings.
Self-Represented Parties: For self-represented parties, referring to the standard of living as upper, middle, or lower income is sufficient.
Other Circumstances: Factual findings on all other circumstances are required only on the request of either party.
Statement of Decision: On request, an order modifying, terminating, or setting aside a support order must include a statement of decision.
The Gavron Warning
When ordering permanent spousal support, the court may advise the supported party that they should make reasonable efforts to assist in providing for their support needs. This advisement, often called a "Gavron" warning, may be inadvisable in a marriage of long duration (generally 10 years or longer).
Rationale: The warning is based on the premise that the supported spouse must be made aware of the obligation to become self-supporting, as failure to make good-faith efforts can constitute a change in circumstances warranting modification.
Appellate Review: Appellate courts consider whether a Gavron warning was given when deciding if modification or termination of support was proper.
Duration and Retention of Jurisdiction
The duration of permanent spousal support is dependent on the parties and the facts of the case. Orders can range from very short-term support for transition to assistance until the death of one spouse.
Short to Mid-Duration Marriages: Absent a reservation of jurisdiction, a court cannot reinstate, extend, or modify a spousal support order after its expiration.
Marriages of Long Duration (10 years or more): The court retains jurisdiction indefinitely over spousal support, unless the parties agree otherwise in writing, or a court order terminates it.
Fam. Code § 4336 was enacted in response to California Supreme Court decisions holding it an abuse of discretion to terminate jurisdiction in lengthy marriages unless evidence clearly shows the supported spouse will be financially adequate by the termination date.
General Rule: Courts should retain jurisdiction, except in a short marriage, unless it can reasonably infer the supported spouse will be self-supporting; unknown future developments are better left to modification proceedings.
Types of Permanent Support Orders
Order of Indeterminate Duration: Provides support until the death of either spouse or the remarriage of the recipient. Appropriate for long marriages or when the supported spouse lacks self-sufficiency capacity.
Fixed-Term Order: Support paid for a fixed period of time and terminates automatically unless jurisdiction is retained. Most common in short-duration marriages.
Step-Down Order: Automatically decreases the support amount at specified intervals. These orders encourage self-support and require evidence to support a reasonable inference that the supported spouse's need for support will decrease and they can realistically become self-supporting.
Contingent Order: Terminates when a specified contingency occurs.
Richmond Order: Terminates on a specified date unless the supported spouse files a motion showing good cause to modify before that date. These orders are also known as "sudden death" termination and are intended to encourage self-sufficiency. The appellate court in Prietsch suggests this is the most appropriate form for most cases. A Gavron warning should accompany a Richmond order.
Modifying or Terminating Spousal Support
Change of Circumstances Requirement: A court may modify or terminate support only when there has been a material change of circumstances since the original order. A material change is a decrease or increase in the supporting spouse's ability to pay and/or a decrease or increase in the supported spouse's needs.
The court must consider the Fam. Code § 4320 factors when making any subsequent modification order. Passage of time is not, by itself, a sufficient basis for modification. "Unrealized expectations" in the ability of the supported spouse to become self-supporting may constitute a change of circumstances.
Specific Change of Circumstances: The termination of child support under Fam. Code § 3901(a) generally constitutes a change of circumstances for spousal support modification, unless specific exceptions apply (e.g., prior marital settlement agreement provisions).A modification motion based on this must be filed no later than 6 months from the date the child support terminates.
Increased Ability to Pay: An enhanced ability to pay alone does not justify an increase in support; it must be shown that the original support was inadequate to meet the supported spouse's reasonable needs.
Cohabitation: There is a rebuttable presumption of a decreased need for spousal support if the supported party is cohabiting with a person of the opposite sex.
Retirement: The supporting spouse's retirement may constitute a material change in circumstances. A supporting spouse cannot be compelled to work after the usual retirement age of 65 to maintain the same support level. However, if the supporting spouse elects early retirement, the court may impute income.
Subsequent Spouse/Partner Income: A court may not consider the income of a supporting spouse's subsequent spouse or nonmarital partner when determining or modifying spousal support. However, the court must apportion the expenses resulting from the remarriage, as Fam. Code § 4323(b) does not address this.
Retroactive Modification
The court may make a modification order retroactive to the date the notice of motion was filed, or any subsequent date. If the order is due to unemployment, retroactivity must be to the date of service or unemployment, whichever is later, unless the court finds good cause otherwise. The court may order the support obligee to repay overpaid amounts.
Termination
By Agreement: A court may not modify or terminate support if the parties have a written or oral agreement in open court that specifically precludes modification or termination.
By Event: The obligation terminates when: a specific date is reached (if jurisdiction wasn't retained); a contingency occurs; or either party dies or the supported party remarries (unless agreed otherwise).
Premarital Agreements
A provision to waive spousal support in a premarital agreement is not per se unenforceable. However, a waiver is not enforceable if the party was not represented by independent counsel when signed, or if the provision is unconscionable at the time of enforcement. Fam. Code § 1612(c), enacted in 2002, is not retroactive.
