Legal Counsel You Can Rely On

TABLE OF CONTENTS

I. TEMPORARY SUPPORT

II. PERMANENT SUPPORT

III. MANDATORY FACtORS

IV. MARITAL STANDARD OF LIVING

V. MANDATORY FINDINGS

VI. GAVRON WARNING

VII. RETENTION OF JURISDICTION

VIII. TYPES OF ORDERS

IX. MODIFYING OR TERMINATING SUPPORT

X. TERMINATION-SET ASIDE-PREMARITAL

During the pendency of a proceeding for dissolution of marriage or legal separation, the court may order the husband or wife to pay any amount that is necessary for the support of the other party. (Fam. Code § 3600.) 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. (Marriage of Burlini (1983) 143 Cal.3d 65, 68, 191 Cal.Rptr. 541.) A court may order temporary spousal support in any amount after considering the moving party's needs and the other party's ability to pay. (Marriage of Murray (2002) 101 Cal.4th 581, 594, 124 Cal.Rptr.2d 342.) (See Marriage of Jacobson(2004) 121 Cal.4th 1187, 1191- 1193, 18 Cal.Rptr.3d 162 (in dissolution proceeding filed by Indian spouse against non-Indian spouse, court had jurisdiction to order petitioner to pay temporary spousal support to respondent from her tribal gaming distributions notwithstanding tribal resolution prohibiting former spouses who are not tribal members from receiving these distributions; resolution is inconsistent with California law).) The court may look to the parties' accustomed marital lifestyle as the main basis for a temporary support order. (Marriage of Wittgrove (2004) 120 Cal.4th 1317, 1327, 16 Cal.Rptr.3d 489.)

If spouse has been convicted of domestic violence against the other spouse within 5 years of the family law proceeding, there is a rebuttable presumption against awarding temporary spousal support to the abusive spouse. (Fam. Code § 4325.) In addition, the court must consider any documented history of domestic violence between the parties when setting temporary spousal support. (See Fam. Code § 3600 (temporary order must be consistent with requirements of Fam. Code §§ 4320(i), 4320(m), and 4325).) Temporary spousal support may not be awarded to a spouse convicted of attempting to murder the other spouse or of soliciting the murder of the other spouse. (Fam. Code § 4324; see also Marriage of MacManus (2010) 182 Cal.4th 330, 105 Cal.Rptr.3d 785 (court did not abuse its discretion in reallocating distribution of back child support to back spousal support in light of support obligor's history of domestic violence).)

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. (Marriage of Askmo (2000) 85 Cal.4th 1032, 1036-1040, 102 Cal.Rptr.2d 662.)

Use of Court Schedules or Formulas

Many courts have adopted schedules or formulas for determining temporary spousal support that divide the family income proportionately based either on the net income of the party being asked to pay support or on the net incomes of both parties. These guidelines promote consistency in temporary support orders and may reduce the need for hearings; however, they are not mandatory and should not be used in cases with unusual facts or circumstances. Marriage of Burlini (1983) 143 Cal.3d 65, 70, 191 Cal.Rptr.541. Some special circumstances that might justify a deviation from the guideline amount include the following (Marriage of Burlini, supra):

• Tax consequences contemplated by the guideline, e.g., temporary      spousal support not to be taxable to the recipient, are incorrect.
• Party is paying spousal or child support from a prior relationship.
• Party is encumbered with unusually large mortgage payments or other      monthly payments.
• Party has special expenses or special needs.

For examples of local court spousal support guidelines, see Alameda County rule 5.70, Santa Clara County rule 3(C).

Duration of Temporary Spousal Support Order

The court can order temporary spousal support from the time of the filing of a petition for dissolution of marriage. (Fam. Code §§ 3600, 2330.) The order will remain in effect until:

• Judgment is issued (Wilson v Superior Court (1948) 31 C2d 458, 463, 189 P2d 266). But note, the court retains the power to order temporary support during pendency of any appeal (Bain v Superior Court (1974) 36 Cal.3d 804, 808-810, 111 Cal.Rptr. 848);
• The case is dismissed (Moore v Superior Court (1970) 8 Cal.3d 804, 810, 87 Cal.Rptr. 620); or
• The order expires on its own terms (a "sunset" provision, e.g., for some marriages of short duration).

If there is no termination of the order of support, payment obligation continues to accrue even if the action is not being actively litigated, and payments that accrue before termination remain enforceable after termination. Moore v Superior Court, supra. But the order is not enforceable during any period when the parties have reconciled and are living together. (Fam. Code § 3602.)

Modification of Temporary Spousal Support

A court may modify or terminate a temporary spousal support order at any time. The court's power to modify or terminate is limited, however, in two respects:

• The court may not modify or terminate the payor's liability for payments that accrued before the date of filing the notice of motion or order to show cause to modify or terminate the order. (Fam. Code § 3603.)
• The court may not retroactively modify a temporary support order. Family Code § 3603 establishes the filing date of the modification motion or RFO to modify as the outermost limit of retroactivity. (Marriage of Gruen (2011) 191 Cal.4th 627, 637, 120 Cal.Rptr.3d 184; Marriage of Murray (2002) 101 Cal.4th 581, 595-596, 124 Cal.Rptr.2d 342; Marriage of Goodman (2011) 191 Cal.4th 627, 638-639, 120 Cal.Rptr.3d 184.) However, unlike in Marriage of Gruen, if the trial court specifically reserves jurisdiction on a nonfinal order and continues the case to a specific date and time, retroactivity can be applied. (Marriage of Freitas (2012) 209 Cal.4th 1059, 147 Cal.Rptr.3d 453.)

Temporary spousal support may be modified without a showing of changed circumstances. See Sande v Sande(1969) 276 CA2d 324, 329, 80 Cal.Rptr. 826; Zinke v Zinke (1963) 212 CA2d 379, 382-385, 28 Cal.Rptr. 7. But see Marriage of Murray, supra, 101 Cal.4th at 581, 597 n11 (dicta).

Permanent spousal support may be awarded in a judgment of dissolution or legal separation in an amount and for a period of time 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). See §§ 201.71-201.85.) Although spousal support awarded in a final judgment is generally referred to as "permanent," the actual duration of support is within the court's discretion and subject to modification."Spousal support" is broadly defined to include a wide variety of financial assistance designed to cover everyday living expenses, including housing, food, clothing, health, recreation, vacation, and travel expenses. (See Marriage of Benjamins(1994) 26 Cal.4th 423, 429, 31 Cal.Rptr.2d 313.) For example, the court may order the supporting spouse to (Fam. Code § 4360(a); see 26 Cal.4th at 430-431): 

• Maintain health insurance for the other spouse.
• Make mortgage payments to the supported spouse or directly to the mortgagor.
• Pay overdue community debts or the supported spouse's future debts.
• Take out a life insurance policy with the other spouse as beneficiary.
• Purchase an annuity or establish a trust to support the other spouse      after the supporting spouse's death.
• Pay the supported spouse's attorney fees based on need.

Effect of Temporary Support on Permanent Support

Unlike temporary spousal support, the purpose of permanent spousal support is not to preserve the status quo, but to provide financial assistance, if appropriate, as determined by the parties' financial circumstances after dissolution and the division of their community property. Marriage of Burlini (1983) 143 Cal.3d 65, 69, 191 Cal.Rptr. 541. In determining permanent spousal support, the court must consider a complex variety of statutory factors (Fam. Code § 4320), including several factors that tend to favor reduced support, such as the "goal" that the supported spouse should become self-supporting within a reasonable period of time (Fam. Code § 4320(l)).Because the considerations in awarding the two types of support are different and because of the reality that temporary support tends to be higher than permanent support, the court should not use the amount of temporary support in determining the amount of permanent support. Marriage of Schulze (1997) 60 Cal.4th 519, 524-527, 70 Cal.Rptr.2d 488 (Fam. Code § 4320 clearly contemplates a "ground-up" examination of need for and appropriate level of permanent support, rather than beginning with figure based on temporary support order). (See Marriage of Zywiciel (2000) 83 Cal.4th 1078, 1081-1082, 100 Cal.Rptr.2d 242 (in determining permanent spousal support, judge may not abdicate responsibility by turning to DissoMaster temporary support guideline, even if used only as a reference point); Marriage of Burlini, supra, 143 Cal.3d at 68 (court may not use local guidelines for temporary spousal support to compute permanent spousal support).) 

Unlike child support, spousal support is not a mandatory requirement in dissolution proceedings. Marriage of Meegan (1992) 11 Cal.4th 156, 161, 13 Cal.Rptr.2d 799. Computer programs cannot be used to calculate permanent support. In determining whether to award permanent support, and the amount and duration of that support, the court must consider and weigh all of the 14 factors listed in Fam. Code § 4320, to the extent they are relevant. (Marriage of Cheriton (2001) 92 Cal.4th 269, 302, 111 Cal.Rptr.2d 755.) 

The court may determine the appropriate weight to be given to each factor, with the goal of accomplishing substantial justice for the parties. Marriage of Smith (1990) 225 Cal.3d 469, 481-482, 274 Cal.Rptr. 911. However, the court may not act arbitrarily but must exercise its discretion along legal lines, taking into consideration the applicable circumstances of the parties set forth in Fam. Code § 4320, particularly the parties' reasonable needs and financial abilities. A failure to do so is reversible error. (Marriage of Cheriton, supra, 92 Cal.4th at 304.) 

Sufficiency of Earning Capacities To Maintain Marital Standard of Living

The court must consider the extent to which each party's earning capacity is sufficient to maintain the standard of living established during the marriage, taking into account all of the following factors (Fam. Code § 4320(a)):  

• The supported party's marketable skills.
• 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.
• The possible need for retraining or education to acquire more marketable skills or employment. See Marriage of Watt (1989) 214 Cal.3d 340, 347-348, 262 Cal.Rptr. 783 (wife did not demonstrate present need for retraining or education to attain more marketable skills, notwithstanding her intention to begin a specified training program, when her income before training was higher than the amount she would earn on completing the training program).
• The extent to which the supported party's present or future earning capacity is impaired by periods of unemployment incurred during the marriage to permit the supported party to devote time to domestic duties. (See Marriage of Cheriton (2001) 92 Cal.4th 269, 306, 111 Cal.Rptr.2d 755 (insufficient evidence that wife's domestic duties hampered her career); Marriage of Kerr (1999) 77 Cal.4th 87, 94, 91 Cal.Rptr.2d 374 (in setting support, court considered wife's impaired earning ability caused by her 20-year absence from workforce to care for husband and children, which allowed husband to develop and maintain lucrative career).)

Contributions to Supporting Party's Education and Training

The court must consider the extent to which the supported party contributed to the supporting party's attainment of an education, training, career position, or license. (Fam. Code § 4320(b).) This provision must be interpreted broadly and requires the court to consider all of the supported party's efforts to assist the supporting party in acquiring an education and enhanced earning capacity, i.e., the court must consider living expenses contributed by the supported party, as well as education expenses. (Marriage of Watt (1989) 214 Cal.3d 340, 350-351, 262 Cal.Rptr. 783 (court should give "weighty" consideration to supported party's contributions in deciding propriety and extent of spousal support award).) This provision is, however, limited to contributions the supported spouse made to the other spouse's "attainment" of an education or career position and does not apply with respect to domestic contributions the supported spouse made that allegedly aided the other spouse in carrying out a career position he or she had already attained before the marriage. (Marriage of Cheriton (2001) 92 Cal.4th 269, 306, 111 Cal.Rptr.2d 755.) 

Supporting Party's Ability To Pay

The court must consider the supporting party's ability to pay spousal support, taking into account his or her earning capacity, earned and unearned income, assets, and standard of living. (Fam. Code § 4320(c).) 

The statutory guidelines governing spousal and child support do not limit the circumstances under which a court may consider the supporting spouse's earning capacity. (Marriage of Simpson(1992) 4 Cal.4th 225, 232- 233, 14 Cal.Rptr.2d 411.) For example, it need not be shown that the supporting spouse has willfully avoided fulfilling family support obligations through deliberate misconduct. (Marriage of Stephenson(1995) 39 Cal.4th 71, 78- 80, 46 Cal.Rptr.2d 8; Marriage of Khera & Sameer (2012) 206 Cal.4th 1467, 143 Cal.Rptr.3d 81 (court affirmed reduction of support to zero to supported spouse who chose to enroll in doctoral program rather than to complete MSW which would have led to job earning over $42,000 a year as social worker).) Evidence must be presented, however, showing that the supporting party has both the ability and opportunity to obtain employment that would generate a higher income. (Marriage of Reynolds (1998) 63 Cal.4th 1373, 1378, 74 Cal.Rptr.2d 636; Marriage of Stephenson, supra, 39 Cal.4th at 80.) The court may not order spousal support, however, based on a finding that a spouse's present earnings from long-term employment can be increased by requiring that person to take a retirement and then requiring that person to take an available, but different, position adding the new retirement income to the new position income. (Marriage of Kochan (2011) 193 Cal.4th 420, 427, 122 Cal.Rptr.3d 61.) 

A party's ability to pay encompasses his or her assets as well as income. Therefore, the court may look to the assets controlled by the supporting party, other than income, as a basis for awarding spousal support. (Marriage of Cheriton (2001) 92 Cal.4th 269, 305, 111 Cal.Rptr.2d 755 (court should have considered husband's "substantial assets" in awarding spousal support; see Fam. Code § 4338 (spousal support is payable from party's earnings and income, community property, quasi-community property, and separate property).) The court has discretion to exclude funds that a husband used to capitalize and vertically integrate his business from his income for purposes of calculating his spousal support obligation. (Marriage of Blazer (2009) 176 Cal.4th 1438, 1447, 99 Cal.Rptr.3d 42.) 

Support may consist of a percentage of the supporting party's future income from the exercise of stock options (Marriage of Kerr (1999) 77 Cal.4th 87, 95, 91 Cal.Rptr.2d 374) or from the receipt of bonuses (Marriage of Ostler & Smith (1990) 223 Cal.3d 33, 272 Cal.Rptr. 560). 

Parties' Needs

The court must consider each party's needs based on the standard of living established during the marriage. (Fam. Code § 4320(d).) 

Parties' Obligations and Assets

The court must consider each party's obligations and assets, including separate property. (Fam. Code § 4320(e).) 

A court may consider a party's separate property when determining his or her ability to pay support. (SeeFam. Code § 4338(d) (separate property may be used to pay spousal support); Marriage of de Guigne (2002) 97 Cal.4th 1353, 1365, 119 Cal.Rptr.2d 430 (fact that marriage generated little or no community property does not relieve party of support obligation).) 

A court may also consider a party's separate property when determining his or her need for support. In an original or modification proceeding, when there are no children and a party has or acquires a separate estate, including income from employment, sufficient for his or her proper support, no support may be ordered or continued for this party. (Fam. Code § 4322.) Denial of support is mandatory if the sufficiency threshold is met, irrespective of the circumstances the court would otherwise consider under Fam. Code § 4320. (Marriage of Terry (2000) 80 Cal.4th 921, 928, 95 Cal.Rptr.2d 760.) The court must determine whether the party's separate estate, including assets acquired through the final division of community property, is, or is not, capable of providing for that party's proper support. The court is not limited to considering the income actually and presently produced by the estate. It may look to the estate as a whole, including the actual and reasonable income potential from investment assets, as well as their total value, in resolving the issue of the estate's sufficiency for proper support. (Id., 80 Cal.4th at 929-931.) 

Length of Marriage

The court must consider the duration of the marriage. (Fam. Code § 4320(f).) This factor is generally more relevant to the duration of spousal support than to the amount of support to be ordered. It is of primary concern in determining whether jurisdiction over spousal support should be retained indefinitely, or whether spousal support should be ordered for a limited term. 

Employment of Supported Party and Its Impact on Children

The court must consider the supported party's ability to engage in gainful employment without unduly interfering with the interests of dependent children in that party's custody. (Fam. Code § 4320(g).) 

Age and Health of Parties

The court must consider the age and health of the parties. (Fam. Code § 4320(h).) An older, less healthy supported spouse is obviously more likely to receive a favorable long-term support order than is a younger, more healthy spouse. However, support may not be ordered on the basis of the age and health of the parties alone. (See Marriage of Wilson (1988) 201 Cal.3d 913, 917-920, 247 Cal.Rptr. 522 (following childless 5-year marriage, no abuse of discretion in terminating support for permanently disabled spouse 58 months after dissolution; trial court relied primarily on the fact that the marriage was not lengthy, but properly weighed all eight factors of former Civ. Code § 4801(a), predecessor of Fam. Code § 4320).) (Compare Marriage of Heistermann (1991) 234 Cal.3d 1195, 1200-1203, 286 Cal.Rptr. 127 (following marriage of almost 9 years, trial court erred in terminating support for physically disabled spouse after passage of 1 year when there was no evidence that the spouse could be self-supporting).) 

History of Domestic Violence

The court must consider any documented evidence of any history of domestic violence, as defined in Fam. Code § 6211, between the parties or perpetrated by either party against either party's child, including, but not limited to (Fam. Code § 4320(i)):  

• Supported party's emotional distress resulting from domestic violence committed by the supporting party.
• Any history of violence against the supporting party by the      supported party.

(See Marriage of MacManus(2010) 182 Cal.4th 330, 337-338, 105 Cal.Rptr.3d 785 (trial court did not abuse its discretion by considering parties' history of domestic violence when it reallocated trust account distributions to past temporary spousal support); see also Fam. Code §§ 4320(m), 4325 (rebuttable presumption that spouse convicted of domestic violence is not entitled to support).) 

Tax Consequences

The court must consider the immediate and specific tax consequences of spousal support to each party. (Fam. Code § 4320(j).) Spousal support payments are included in the payee's gross income and are deductible by the payor. (See IRC §§ 71, 215; Rev & TC §§ 17081) Because federal law does not recognize domestic partnerships, it appears that any domestic partner support (seeFam. Code §§ 297.5(a), 299(d)) will not be taxable to the recipient or deductible by the payor. 

Relative Hardships

The court must consider the balance of the hardships to each party. (Fam. Code § 4320(k).) 

Goal of Self-Support

When ordering spousal support, the court must consider 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. The court may, however, order support for a greater or lesser length of time based on the parties' circumstances. (Fam. Code § 4320(l).) The Supreme Court has noted that this provision reflects that the law has progressed from a rule that entitled some women to lifelong support as a condition of the marital contract of support to a rule that entitles either spouse to postdissolution support for only as long as necessary to become self- supporting. (Marriage of Pendleton & Fireman (2000) 24 Cal.4th 39, 53, 99 Cal.Rptr.2d 278.) 

A "displaced homemaker" from a lengthy marriage may find it impossible to enter the job market, and it may be appropriate to order spousal support for an extended duration. (Marriage of Heistermann (1991) 234 Cal.3d 1195, 1204, 286 Cal.Rptr. 127.) 

If the party seeking support has unreasonably delayed or refused to seek employment consistent with his or her ability, the court may consider this factor in fixing the amount and duration of support in the first instance, as well as in a subsequent modification proceeding. (Id., 234 Cal.3d at 1204; see also Marriage of Khera & Sameer (2012) 206 Cal.4th 1467, 143 Cal.Rptr.3d 81 (court affirmed reduction of support to zero to supported spouse who chose to enroll in doctoral program rather than to complete MSW which would have led to job earning over $42,000 a year as social worker).) 

Conviction for Domestic Violence or Attempted Murder or Solicitation of Murder

If one spouse has been convicted of domestic violence against the other spouse within 5 years of the filing of the dissolution proceeding, or at any time thereafter, there is a rebuttable presumption against awarding temporary or permanent spousal support to the abusive spouse. (Fam. Code §§ 4320(m), 4325(a).) This presumption may be rebutted by a preponderance of the evidence. (Fam. Code § 4325(c).) The court may consider documented evidence of a convicted spouse's history as a victim of domestic violence perpetrated by the other spouse, or any other factors the court finds just and equitable, as conditions for rebutting the presumption. (Fam. Code § 4325(b).) 

If one spouse has been convicted of attempting to murder the other spouse or of soliciting the murder of the other spouse, the convicted spouse is prohibited from receiving any temporary or permanent spousal support, or any medical, life, or other insurance benefits or payments from the injured spouse. (Fam. Code § 4324.) 

Criminal Conviction for Violent Sexual Felony 

In any proceeding for dissolution of marriage where there is a criminal conviction for a violent sexual felony perpetrated by one spouse against the other spouse filed before 5 years following the conviction and any time served in custody, on probation or on parole, the following shall apply (Fam. Code § 4324.5):  

• An award of spousal support to the convicted spouse from the injured      spouse is prohibited.
• Where economic circumstances warrant, the court must order the attorney fees and costs incurred by the parties to be paid from community assets. The injured spouse may not be required to pay any attorney fees of the convicted spouse out of his or her separate property.
• At the request of the injured spouse, the date of legal separation shall be the date of the incident giving rise to the conviction, or earlier, if the court finds circumstances justifying the earlier date.
• The injured spouse shall be entitled to 100 percent of the community property interest in the retirement and pension benefits of the injured spouse.
• "Injured spouse" means the spouse who has been the subject of the violent sexual felony for which the other spouse was convicted. (Fam. Code § 4324.4(c).)
• 
  

Review Pen. Code § 667.5(c)(3), (4), (5), (11), (18) for descriptions of offenses considered a "violent sexual felony". 

Other "Just and Equitable" Factors

The court must consider any other factors the court determines are just and equitable. (Fam. Code § 4320(n).) For example, in Marriage of Shaughnessy (2006) 139 Cal.4th 1225, 1244, 43 Cal.Rptr.3d 642, the court held that it is within the trial court's discretion to consider evidence of monetary gifts from the obligee's parents as one factor in determining an appropriate spousal support award.  

In awarding permanent spousal support, the court must base its decision on the standard of living established during the marriage. (Fam. Code § 4330(a).) There is no set formula for determining the marital standard of living. The court must weigh the marital standard along with all the other factors in Fam. Code § 4320 in fixing an amount of support that is just and reasonable. (Fam. Code § 4330(a).)

The marital standard of living means the general station in life the parties enjoyed during their marriage. (Marriage of Smith (1990) 225 Cal.App.3d 469, 475, 274 Cal.Rptr. 911.) It is a general description that is not intended to specifically spell out or narrowly define a mathematical standard. (Id., 225 Cal.App.3d at 491.) It may be determined from the parties' average income over a period of time or from their expenditures. (Marriage of Weinstein (1991) 4 Cal.App.4th 555, 565-566, 5 Cal.Rptr.2d 558.)

The marital standard of living is a reference point against which the court may weigh the other statutory considerations. Whether to fix spousal support at an amount greater than, equal to, or less than what the supported spouse may require to maintain the marital standard of living is within the court's discretion after weighing the statutory factors. (Marriage of Cheriton (2001) 92 Cal.App.4th 269, 308, 111 Cal.Rptr.2d 755.)

A spouse's high income may be considered with respect to his or her ability to pay support. But the fact that a high income enables this spouse to maintain a standard of living that is higher than the marital standard of living does not mean that the supported spouse is entitled to an amount of support that will allow the supported spouse to also maintain a higher standard of living. (Id., 92 Cal.App.4th at 307-308; Marriage of Weinstein, supra, 4 Cal.App.4th at 568.)

If there is evidence that the family's standard of living was low when compared with available income during marriage, the court may be justified in setting spousal support at a level above the parties' actual standard of living during marriage. (Marriage of Cheriton, supra, 92 Cal.App.4th at 307-308; see Marriage of Drapeau (2001) 93 Cal.App.4th 1086, 1096, 114 Cal.Rptr.2d 6 (court may consider parties history of saving significant portions of their income).) Likewise, if the parties intentionally maintained a low standard of living so that one of them could obtain an advanced degree with the expectation that this party's increased earnings would enable the parties to enjoy a higher standard of living, the court should take into account the impact this party's absence from the full-time work force had on the parties' standard of living during the marriage. (Marriage of Watt(1989) 214 Cal.App.3d 340, 351-352, 262 Cal.Rptr. 783.)

Mandatory Findings on the Marital Standard of Living 

A court must make specific factual findings with respect to the parties' standard of living during the marriage. (Fam. Code § 4332.) Equally important, the court should make a specific finding that the amount of the support order is or is not sufficient to meet the reasonable needs of the supported spouse, considering the parties' marital standard of living at the time of separation and the other Fam. Code § 4320factors. (Marriage of Smith (1990) 225 Cal.App.3d 469, 491-493, 274 Cal.Rptr. 911.)

Ideally, the findings should be specific enough to be helpful in subsequent modification or appellate proceedings. In cases in which the parties are represented by counsel, courts are encouraged, with counsel's assistance, to make specific findings. However, in cases in which the parties represent themselves, it is unrealistic to expect them to use anything other than the everyday understanding of the term in its ordinary sense; therefore, in these cases, referring to the standard of living as upper, middle, or lower income, is sufficient. (Id., 225 Cal.App.3d at 491.)

Findings of Other Circumstances on Request

Factual findings on all other circumstances on which the support order is based are required only on the request of either party. (Fam. Code § 4332.) A party may request, for example, findings on the underlying assumptions regarding future circumstances, the needs of the supported spouse, and whether the amount awarded is sufficient to meet those needs.

Statement of Decision 

On the request of either party, an order modifying, terminating, or setting aside a support order must include a statement of decision. (Fam. Code § 3654.)

When ordering permanent spousal support, the court may advise the supported party that he or she should make reasonable efforts to assist in providing for his or her support needs. The court may decide that this warning is inadvisable if the case involves a marriage of long duration (generally 10 years or longer). (Fam. Code § 4330(b).)In giving the advisement, the court must take into account the Fam. Code § 4320factors considered by the court in ordering spousal support. Fam. Code § 4330(b). This advisement is often called a "Gavron" warning after the leading case, Marriage of Gavron (1988) 203 Cal.App.3d 705, 250 Cal.Rptr. 148.Inherent in the concept that the supported spouse's failure to make good-faith efforts to become self-supporting can constitute a change in circumstances that could warrant a modification in spousal support is the premise that the supported spouse is made aware of the obligation to become self-supporting. (Marriage of Gavron, supra, 203 Cal.App.3d at 712; see Marriage of Schmir(2005) 134 Cal.App.4th 43, 53-58, 35 Cal.Rptr.3d 716 (order reducing spousal support reversed because no warning given to recipient spouse).)

Although the statute is couched in discretionary language, actual practice is to advise the spouse receiving support of the need to become self-supporting within a reasonable time. One factor appellate courts consider in deciding whether a modification or termination of spousal support was proper is whether a Gavron warning was given. (Marriage of Gavron, supra, 203 Cal.App.3d at 711-712.)

• To help assess a party's ability to obtain employment, the court may      order the party to submit to an examination by a vocational training      counselor under Fam. Code § 4331.

Duration of Support Order 

The duration of permanent spousal support is necessarily dependent on the parties and the facts and circumstances of the case. (Marriage of Smith (1990) 225 Cal.App.3d 469, 480, 274 Cal.Rptr. 911.) In some cases, very short- term support is appropriate to financially assist one spouse in the transition to single status or until the proceeds from an ordered property division or sale can be received. (Id., 225 Cal.App.3d at 480-481.) At the other end of the spectrum are cases in which the purpose of spousal support is to provide financial assistance to the supported spouse until the death of one of the spouses, because the supported spouse cannot generate income from employment or assets or, in any event, an amount of income sufficient to provide for his or her own reasonable living expenses. 

Somewhere within this spectrum is the myriad of factual circumstances that the trial court must consider in making its order. For example, it may be appropriate to order support for a specific period of time to enable the supported spouse to obtain or complete an education, to refrain from employment in order to remain home to care for young children until they reach an age at which a return to employment would be appropriate, or to become self-supporting within a reasonable time. (Id., 225 Cal.App.3d at 481.)

There are different rules for marriages of short to mid-duration than for marriages of long duration. 

In marriages of short to mid-duration, absent a reservation of jurisdiction, a court cannot reinstate, extend, or modify a spousal support order after the expiration of the underlying order. (Fam. Code § 4335; Marriage of Beck (1997) 57 Cal.App.4th 341, 344, 67 Cal.Rptr.2d 79.)

However, when a marriage is of long duration, the court retains jurisdiction indefinitely over spousal support, in the absence of the parties' written agreement to the contrary or a court order terminating spousal support. (Fam. Code § 4336(a).) In such a case, an express reservation of jurisdiction over spousal support is not required. (Marriage of Ostrander (1997) 53 Cal.App.4th 63, 65-66, 61 Cal.Rptr.2d 348.) There is a rebuttable presumption affecting the burden of producing evidence that a marriage of 10 years or more, from the date of marriage to the date of separation, is a marriage of long duration. (Fam. Code § 4336(b).) There is no limitation, however, on the court's discretion to terminate spousal support in a later proceeding on a showing of changed circumstances. (Fam. Code § 4336(c); Marriage of Christie (1994) 28 Cal.App.4th 849, 858, 864, 34 Cal.Rptr.2d 135.) Fam. Code § 4336 was enacted in response to decisions of the California Supreme Court holding that it is an abuse of discretion for a court to terminate jurisdiction over spousal support in a case involving a lengthy marriage, unless the evidence clearly indicates that the supported spouse will be able to adequately meet his or her financial needs by the termination date. (Marriage of Vomacka (1984) 36 C3d 459, 467-468, 204 Cal.Rptr. 568; Marriage of Morrison (1978) 20 C3d 437, 453-454, 143 Cal.Rptr. 139.)

In other cases, a court has broad discretion in determining whether to divest itself of jurisdiction over spousal support on a certain date. (Marriage of Baker (1992) 3 Cal.App.4th 491, 498, 4 Cal.Rptr.2d 553.) As a general rule, a court should retain jurisdiction, except in the case of a short marriage, unless it can reasonably infer that the supported spouse will be self-supporting by the termination date; unknown future developments are better left to modification proceedings. (Id., 3 Cal.App.4th at 498-499; Marriage of Heistermann (1991) 234 Cal.App.3d 1195, 1201-1202, 286 Cal.Rptr. 127 (court should retain jurisdiction in medium-length marriage when supported spouse may be unable to become self-supporting because of age or poor health).) An order setting a termination date, but retaining jurisdiction, puts the supported spouse on notice of the expectation to become self- supporting; it also shifts the burden to the supported spouse at a modification proceeding to show the changed circumstance of a continued need for support notwithstanding good faith efforts to become self- supporting. (Id., 234 Cal.App.3d at 1201; see Marriage of Huntington (1992) 10 Cal.App.4th 1513, 1520-1521, 14 Cal.Rptr.2d 1(termination of support after 6 months was appropriate in case involving 3-year marriage, when supported spouse had marketable skill she could make use of with little retraining); Marriage of Hebbring (1989) 207 Cal.App.3d 1260, 1266-1267, 255 Cal.Rptr. 488 (abuse of discretion to retain jurisdiction in case involving short-term marriage when spouse seeking support is in good health and has employment that provides sufficient income for self-support).)

A court may modify or terminate a spousal support order as the court determines to be necessary. (Fam. Code § 3651(a).)

Change of Circumstances Requirement 

The court may grant a motion for modification or termination of spousal support order only when there has been a material change of circumstances since the order was initially made. (Marriage of Gavron (1988) 203 Cal.App.3d 705, 710, 250 Cal.Rptr. 148.)

A material change of circumstances means a decrease or increase in the supporting spouse's ability to pay and/or a decrease or increase in the supported spouse's needs. It includes all factors affecting need and ability to pay. (Marriage of McCann (1996) 41 Cal.App.4th 978, 982, 48 Cal.Rptr.2d 864; see, e.g., Marriage of Lynn (2002) 101 Cal.App.4th 120, 126, 123 Cal.Rptr.2d 611 (court may consider discharge in bankruptcy of one spouse's property settlement debt to other spouse as factor in determining whether to modify bankrupt spouse's support obligation); see also Marriage of Dietz (2009) 176 Cal.App.4th 387, 97 Cal.Rptr.3d 616 (court erred in concluding that now penalty- free accessibility and increased value of retirement accounts awarded to former wife constituted material change in circumstances that justified reduction in husband's spousal support obligation).)

The court must consider the circumstances listed in Fam. Code § 4320 not only when making an initial spousal support order but also when making any subsequent modification order. (Marriage of Terry (2000) 80 Cal.App.4th 921, 928, 95 Cal.Rptr.2d 760.)

Although the passage of time may be related to a change in circumstances, it is not, by itself, a sufficient basis for modification. (Marriage of Heistermann (1991) 234 Cal.App.3d 1195, 1202, 286 Cal.Rptr. 127; Marriage of Gavron (1988) 203 Cal.App.3d 705, 710, 250 Cal.Rptr. 148.) 

A change of circumstances may be in the form of "unrealized expectations" in the ability of the supported spouse to become self- supporting within a certain period of time despite making reasonable efforts to secure employment. (Marriage of Beust(1994) 23 Cal.App.4th 24, 29, 28 Cal.Rptr.2d 201; see Marriage of Khera & Sameer (2012) 206 Cal.App.4th 1467, 143 Cal.Rptr.3d 81(court affirmed reduction of support to zero to supported spouse who chose to enroll in doctoral program rather than to complete MSW which would have led to job earning over $42,000 a year as social worker), Marriage of Schaffer(1999) 69 Cal.App.4th 801, 811-812, 81 Cal.Rptr.2d 797 (court may consider whether supported spouse has made unwise decisions that have had the effect of preventing him or her from becoming self-supporting).)

Showing a material change in circumstances necessitates comparing financial information on which the original support order was based with the most recent financial information relevant to a new order, e.g., the parties' current income and expense declarations. (Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 575-576, 7 Cal.Rptr.3d 594 (when husband failed to present "evidentiary yardstick" with which court could determine appropriateness of modification order, his request to modify support was properly denied).)

In a proceeding in which a spousal support order exists or in which the court has retained jurisdiction over a spousal support order and there is a companion child support order in effect, the termination of child support under Fam. Code § 3901(a), with the exceptions specified below, constitutes a change of circumstances that may be the basis for a request by either party for modification of spousal support. (Fam. Code § 4326(a).) The termination of child support does not constitute a change of circumstances in the following situations under Fam. Code § 4326(d):

• The child and spousal support orders are the result of a marital settlement agreement or judgment that contains a provision regarding what is to occur when the child support order terminates;
• The child and spousal support orders are the result of a marital settlement agreement or judgment that provides that the spousal support order is nonmodifiable or that spousal support is waived, and the court's jurisdiction over spousal support has been terminated; and
• The court's jurisdiction over spousal support was otherwise previously terminated. 

A motion to modify spousal support based on changed circumstances under Fam. Code § 4326(a) must be filed by either party no later than 6 months from the date the child support order terminates. (Fam. Code § 4326(b); see also Marriage of Kacik(2009) 179 Cal.App.4th 410, 425-426, 101 Cal.Rptr.3d 745 (termination of child support must be reasonably contemporaneous with the request for modification of spousal support in order to constitute change of circumstance under Fam. Code § 4326).)

If a motion to modify spousal support under this provision is filed, either party may request the appointment of a vocational training counselor under Fam. Code § 4331. (Fam. Code § 4326(c).)

Increased Ability To Pay and Original Order Inadequate To Meet Needs 

The supporting spouse's increased ability to pay may justify increased support, but only if there is a showing that the amount of support originally ordered was inadequate to meet the supported spouse's reasonable needs at that time. (Marriage of Smith(1990) 225 Cal.App.3d 469, 482-483, 274 Cal.Rptr. 911.) An enhanced ability to pay alone does not justify an increase in support. (Marriage of Zywiciel (2000) 83 Cal.App.4th 1078, 1081, 100 Cal.Rptr.2d 242.)

Supported Spouse Cohabitating With Person of Opposite Sex 

Except as the parties have otherwise agreed in writing, 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. (Fam. Code § 4323(a)(1).) 

Cohabitation may constitute a material change of circumstances for purposes of modifying a spousal support award because the cohabitant's income may be available to the supported spouse, and sharing a household may result in a decrease in the supported spouse's expenses. (Marriage of Bower (2002) 96 Cal.App.4th 893, 899, 117 Cal.Rptr.2d 520.)

Retirement of Supporting Spouse 

The supporting spouse's retirement may constitute a material change in circumstances justifying a reduction or termination of spousal support. (Marriage of Reynolds (1998) 63 Cal.App.4th 1373, 1377-1379, 74 Cal.Rptr.2d 636.) A supporting spouse cannot be compelled to work after the usual retirement age of 65 in order to pay the same level of spousal support as when he or she was employed. (Id., 63 Cal.App.4th at 1378-1379.) Nor, however, may a supporting spouse be compelled to retire after the usual retirement age of 65, in order to increase his or her support obligation. (Marriage of Kochan (2011) 193 Cal.App.4th 420, 429-430, 122 Cal.Rptr.3d 61 (supporting spouse's hypothetical retirement income is not proper basis for increasing his spousal support obligation).)

If the supporting spouse elects early retirement, however, the court may impute income to that spouse under the general principle that a supporting spouse must make reasonable efforts to obtain employment that would generate a reasonable income under the circumstances to meet a continuing support obligation. (Marriage of Stephenson (1995) 39 Cal.App.4th 71, 80-81, 46 Cal.Rptr.2d 8; but see Marriage of Meegan (1992) 11 Cal.App.4th 156, 161-163, 13 Cal.Rptr.2d 799 (supporting spouse's bona fide retirement at age 50 to enter monastery constituted change of circumstances justifying termination of support, on finding that retirement was not motivated by intention to avoid support obligation).)

No Consideration of Income of Supporting Spouse's Subsequent Spouse or Partner 

A court may not consider the income of a supporting spouse's subsequent spouse or nonmarital partner when determining or modifying spousal support. (Fam. Code § 4323(b); Marriage of Serna(2000) 85 Cal.App.4th 482, 487, 102 Cal.Rptr.2d 188.) Both direct and indirect consideration of this income are precluded, e.g., a court may not consider the indirect effects of this income on the supporting spouse's ability to pay support and on his or her standard of living. (Marriage of Romero(2002) 99 Cal.App.4th 1436, 1438, 1442-1446, 122 Cal.Rptr.2d 220(legislative history of Fam. Code § 4323(b) indicates that prohibition against consideration of new spouse's or nonmarital partner's income is "without exception").)

Fam. Code § 4323(b) does not address how a court should consider the expenses resulting from a supporting spouse's remarriage. It would be inequitable to permit the supporting spouse to claim the entire amount of these expenses on his or her income and expense declaration when the court is prohibited from considering any portion of the new spouse's income. Therefore, some apportionment of these expenses between the supported spouse and the new spouse is required. (Id., 99 Cal.App.4th at 1445-1446.)

Retroactive Modification 

The court may make an order modifying or terminating a spousal support order retroactive to the date on which the notice of motion or order to show cause was filed, or to any subsequent date. (Fam. Code § 3653(a); see also Marriage of Freitas (2012) 209 Cal.App.4th 1059, 147 Cal.Rptr.3d 453 (court may order retroactive support only if retroactivity is specifically reserved and there is a particular date and time to which the case is continued).)

If the order is made because of either party's unemployment, the court must make the order retroactive to the date on which the notice of motion or order to show cause was served or the date of unemployment, whichever is later, unless the court finds good cause not to make the order retroactive and states its reasons on the record. (Fam. Code § 3653(b).)"Good cause" for denying retroactivity requires the court to make a good faith finding that nonretroactivity is justified by real circumstances, substantial reasons, and objective conditions. (Marriage of Leonard(2004) 119 Cal.App.4th 546, 559, 14 Cal.Rptr.3d 482.)

If the court enters a retroactive order decreasing or terminating support, it may order the support obligee to repay any amounts the support obligor paid under the prior order that exceed the amounts due under the retroactive order. (Fam. Code § 3653(c).) The court may require repayment over any period of time and in any manner it deems just and reasonable, including by an offset against future support payments or a wage assignment. (Fam. Code § 3653(c).) In determining whether to order repayment, and in establishing the terms of repayment, the court must consider all of the following factors (Fam. Code § 3653(c)):

• The amount to be repaid.
• The duration of the support order before modification or termination.
• The financial impact on the support obligee of the method of repayment.
• Any other facts or circumstances the court deems relevant. (See, e.g., Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 174-175, 110 Cal.Rptr.2d 111 (court had statutory authority to order reimbursement of support overpayments for entire period, from filing of husband's modification motion until its determination nearly 3 years later).)

Parties Agreement Not To Modify or Terminate Order

A court may not modify or terminate spousal support when the parties have executed a written agreement or entered an oral agreement in open court that specifically precludes modification or termination of the support award. (Fam. Code §§ 3591(c), 3651(d).)

Termnation

The obligation to pay spousal support terminates in a variety of ways:

• When a spousal support order has a specific date on which support is      due to terminate, the support will terminate on that date unless the order      retains jurisdiction to extend it beyond that date. (Fam. Code § 4335.)
• If the order is based on a contingent period of time, the order will      terminate when the contingency occurs. The order may require the supported      party to notify the supporting party when a contingency occurs. (Fam.      Code § 4334(a).)
• Support will terminate when either party dies or the supported party      remarries, unless the parties agree in writing that the support will      continue. (Fam. Code § 4337.)
• The court may issue a modification order terminating support on the      basis of changed circumstances.

Setting Aside Support Order 

The court may relieve a party from all or part of a spousal support order on any terms that may be just.

Effect of Premarital Agreement 

A provision in a premarital agreement under which each party agrees to waive spousal support on dissolution of their marriage does not violate public policy and is not per se unenforceable, when the waiver is executed by intelligent, well-educated persons, each of whom is advised by counsel at the time of executing the waiver. (Marriage of Pendleton & Fireman (2000) 24 C4th 39, 53-54, 99 Cal.Rptr.2d 278.) Any provision in a premarital agreement regarding spousal support, including a waiver of support, is not enforceable against a party who was not represented by independent counsel when the agreement was signed or if the provision is unconscionable at the time of enforcement. An otherwise unenforceable provision may not become enforceable merely because the party against whom enforcement is sought was represented by independent counsel. (See Fam. Code § 1612(c).) Fam. Code § 1612(c) was enacted in 2002 and is not retroactive. (Marriage of Howell (2011) 195 Cal.App.4th 1062, 1077, 126 Cal.Rptr.3d 539(statute precluding enforcement of premarital spousal support waivers without independent counsel is not retroactive).)