california family law for paralegals, 5 th ed. chapter six spousal support

CALIFORNIA CALIFORNIA FAMILY LAW FAMILY LAW

FOR FOR PARALEGALS, 5PARALEGALS, 5thth

Ed.Ed.Chapter SixChapter SixSpousal SupportSpousal Support

2

A. SPOUSAL SUPPORTA. SPOUSAL SUPPORT

The Code section that provides the reciprocal The Code section that provides the reciprocal obligation of spouses to support each other is obligation of spouses to support each other is Family Code section 4300.Family Code section 4300.

Section 4300 provides as follows: “Subject to Section 4300 provides as follows: “Subject to this division, a person shall support the this division, a person shall support the person’s spouse.”person’s spouse.”

Family Code section 4320 has established a Family Code section 4320 has established a very thorough list of certain factors and very thorough list of certain factors and circumstances to be considered when circumstances to be considered when considering the circumstances under which considering the circumstances under which spousal support should be awarded.spousal support should be awarded.

See pages 202 and 203.See pages 202 and 203.

3

1. PRELIMINARY 1. PRELIMINARY CONSIDERATIONSCONSIDERATIONS

Despite these factors, there are circumstances Despite these factors, there are circumstances under which the court has been empowered to under which the court has been empowered to deny support.deny support.

Specifically, Family Code sections 4321 and Specifically, Family Code sections 4321 and 4322 provide that in a judgment of dissolution 4322 provide that in a judgment of dissolution of marriage or legal separation of the parties, of marriage or legal separation of the parties, the court is empowered to deny support to a the court is empowered to deny support to a party out of the separate property of the other party out of the separate property of the other party when the proposed supported party has party when the proposed supported party has her own separate property or is earning a her own separate property or is earning a livelihood sufficient to give that party proper livelihood sufficient to give that party proper support.support.

4


With regard to this general duty of With regard to this general duty of support, unlike child support there is a support, unlike child support there is a direct correlation between a proposed direct correlation between a proposed supported or supporting party supported or supporting party cohabitating with a person of the cohabitating with a person of the opposite sex.opposite sex.

There will be rebuttable presumption There will be rebuttable presumption affecting the burden of proof of a affecting the burden of proof of a decreased need for spousal support if decreased need for spousal support if the supported party is cohabiting with a the supported party is cohabiting with a person of the opposite sex.person of the opposite sex.

5

1. PRELIMINARY 1. PRELIMINARY CONSDERATIONSCONSDERATIONS

Family Code section 4331 sets out the availability for Family Code section 4331 sets out the availability for an examination of the potential supported spouse by an examination of the potential supported spouse by a vocational training consultant.a vocational training consultant.

The court is granted a great deal of discretion with The court is granted a great deal of discretion with regard to spousal support awards, including arriving regard to spousal support awards, including arriving at its ultimate decision as to the amount, duration, at its ultimate decision as to the amount, duration, and whether to obtain jurisdiction to modify the and whether to obtain jurisdiction to modify the spousal support.spousal support.

The only real requirement of the court is that all of The only real requirement of the court is that all of the factors in section 4320 factors be considered and the factors in section 4320 factors be considered and given due weight.given due weight.

The court further has the power to make an order of The court further has the power to make an order of spousal support retroactive in effect not only to the spousal support retroactive in effect not only to the date of the filing of the noticed motion or order to date of the filing of the noticed motion or order to show cause, but even to the date of filing the petition show cause, but even to the date of filing the petition itself.itself.

6


In the absence of a written agreement, the court In the absence of a written agreement, the court must retain jurisdiction indefinitely in a proceeding must retain jurisdiction indefinitely in a proceeding for dissolution of marriage or legal separation over for dissolution of marriage or legal separation over the issue of spousal support where the marriage the issue of spousal support where the marriage has been one of long duration.has been one of long duration.

There is a presumption affecting the burden of There is a presumption affecting the burden of producing evidence that a marriage of ten years or producing evidence that a marriage of ten years or more, from the date of marriage to the date of more, from the date of marriage to the date of separation, is a marriage of long duration.separation, is a marriage of long duration.

A court-ordered spousal support award, unless A court-ordered spousal support award, unless specified to the contrary in a written agreement by specified to the contrary in a written agreement by the parties, will terminate on the death of either the parties, will terminate on the death of either party or the remarriage of the supported party.party or the remarriage of the supported party.

7


With regard to the death of either party the court With regard to the death of either party the court does have the power to require, under certain does have the power to require, under certain circumstances, that the supporting spouse maintain circumstances, that the supporting spouse maintain insurance for the benefit of the supported spouse to insurance for the benefit of the supported spouse to ensure that support can continue after the ensure that support can continue after the supporting spouse’s death.supporting spouse’s death.

Spousal support cannot be ordered or withheld to Spousal support cannot be ordered or withheld to reward or punish either party, and the court is reward or punish either party, and the court is prohibited from conducting any examination into the prohibited from conducting any examination into the “bad faith” or “good faith” of either party in making “bad faith” or “good faith” of either party in making its award of spousal support (with the obvious its award of spousal support (with the obvious exception of proceedings involving “putative” exception of proceedings involving “putative” support, where the designation as a “putative support, where the designation as a “putative spouse” is dependent upon a finding of fault.spouse” is dependent upon a finding of fault.

8

2. FACTORS CONSIDERED 2. FACTORS CONSIDERED IN AN AWARD OF IN AN AWARD OF

SUPPORTSUPPORT Although the Code provides the factors that must Although the Code provides the factors that must

be considered, little else exists to provide be considered, little else exists to provide guideposts or points of reference when guideposts or points of reference when determining the amount of a spousal support determining the amount of a spousal support award once all of these factors have been award once all of these factors have been considered.considered.

The court undertakes an extensive review of the The court undertakes an extensive review of the supported spouse’s ability to reenter the job supported spouse’s ability to reenter the job market with an eye toward providing support for market with an eye toward providing support for that person only until he or she can “come up to that person only until he or she can “come up to speed” and effectively compete in the job market.speed” and effectively compete in the job market.

The court has wide latitude to order the The court has wide latitude to order the supported spouse to attend vocational supported spouse to attend vocational rehabilitation counseling.rehabilitation counseling.

9

2. FACTORS CONSIDERED 2. FACTORS CONSIDERED IN AN AWARD OF IN AN AWARD OF

SUPPORTSUPPORT A vocational rehabilitation counselor is typically an A vocational rehabilitation counselor is typically an

individual who has significant experience in job individual who has significant experience in job analysis and job placement.analysis and job placement.

A request for a vocational rehabilitation A request for a vocational rehabilitation examination must be the subject of a noticed examination must be the subject of a noticed motion wherein one spouse is requesting that the motion wherein one spouse is requesting that the court compel the other spouse to submit to such an court compel the other spouse to submit to such an examination.examination.

Family Code section 4331 establishes the statutory Family Code section 4331 establishes the statutory authority for this examination as well as the authority for this examination as well as the minimum qualifications in order to be accepted by minimum qualifications in order to be accepted by the court as a “vocational training counselor.”the court as a “vocational training counselor.”

These minimum qualifications, as listed in the These minimum qualifications, as listed in the Code, are as follows: see page 208.Code, are as follows: see page 208.

10

3. STRUCTURE OF THE 3. STRUCTURE OF THE AWARDAWARD

There are essentially two phases of spousal There are essentially two phases of spousal support: temporary and permanent.support: temporary and permanent.

They serve different functions, and there are They serve different functions, and there are different guidelines and factors to be considered different guidelines and factors to be considered pertinent to the consideration of each.pertinent to the consideration of each.

A A temporarytemporary award of spousal support award of spousal support contemplates payment of support during that contemplates payment of support during that period of time between the filing of the petition period of time between the filing of the petition and the time of trial.and the time of trial.

A A permanentpermanent award of spousal support is award of spousal support is contemplated to cover the period of time post contemplated to cover the period of time post trial.trial.

11

4. TEMPORARY SUPPORT4. TEMPORARY SUPPORT

Temporary support is ordered during that Temporary support is ordered during that period of time between the filing of the period of time between the filing of the petition and the trial of the matter before petition and the trial of the matter before the court.the court.

Its purpose is to provide funds with which Its purpose is to provide funds with which to allow both parties to maintain the to allow both parties to maintain the standard of living they enjoyed during the standard of living they enjoyed during the marriage pending final determination of the marriage pending final determination of the action.action.

It is typically requested in the form of an It is typically requested in the form of an order to show cause brought at the outset order to show cause brought at the outset of a marital termination proceeding.of a marital termination proceeding.

12

4. TEMPORARY SUPPORT4. TEMPORARY SUPPORT

Family Code section 3600 contains the Family Code section 3600 contains the statutory authority for the award of a statutory authority for the award of a temporary order of spousal support.temporary order of spousal support.

That Code section specifically vests the That Code section specifically vests the superior court with the power to order the superior court with the power to order the husband or wife to pay “any amount” husband or wife to pay “any amount” necessary for the “support of the wife or necessary for the “support of the wife or husband . . ..”husband . . ..”

Unlike a permanent award of spousal support Unlike a permanent award of spousal support or an award of child support, no change in or an award of child support, no change in circumstances is required to modify an award circumstances is required to modify an award of temporary spousal support.of temporary spousal support.

13

5. PERMANENT SUPPORT5. PERMANENT SUPPORT

A A permanentpermanent or or long-termlong-term award of award of spousal support is made up of four spousal support is made up of four component parts:component parts:

1) the amount of the award1) the amount of the award 2) substantive stepdown2) substantive stepdown 3) jurisdictional stepdown3) jurisdictional stepdown 4) reservation of jurisdiction.4) reservation of jurisdiction.

14


a) a) AmountAmount Family Code section 4320 establishes Family Code section 4320 establishes

ten factors that must be considered by ten factors that must be considered by the court in setting an award of long-the court in setting an award of long-term spousal support.term spousal support.

The preface to the list of factors states The preface to the list of factors states that, “the amount of spousal support that, “the amount of spousal support shall be based on the standard of living shall be based on the standard of living established during the marriage.”established during the marriage.”

15


b) b) Substantive StepdownSubstantive Stepdown An award contemplates that the substance of the An award contemplates that the substance of the

award (that is, the amount being paid every month) award (that is, the amount being paid every month) will be reduced at periodic intervals down to zero will be reduced at periodic intervals down to zero with an ultimate retention of jurisdiction with an ultimate retention of jurisdiction component.component.

See example on page 214.See example on page 214. This kind of award is only appropriate if the court This kind of award is only appropriate if the court

can make specific factual findings that at the time can make specific factual findings that at the time of the initial award there are facts and evidence in of the initial award there are facts and evidence in the record that will support the prediction that the the record that will support the prediction that the requirements for support of the supported spouse requirements for support of the supported spouse will justify a periodic lowering of the amounts as will justify a periodic lowering of the amounts as contemplated in the order.contemplated in the order.

16

5. PERMANENT 5. PERMANENT SUPPORTSUPPORT

c) c) Jurisdictional StepdownJurisdictional Stepdown In this context, the court is limiting its In this context, the court is limiting its

jurisdiction to award support above a certain jurisdiction to award support above a certain level.level.

See example on pages 215.See example on pages 215. This type of order is only appropriate in cases This type of order is only appropriate in cases

in which the court is able to make a specific in which the court is able to make a specific factual finding that evidence exists to support factual finding that evidence exists to support the proposition that, over time, the supported the proposition that, over time, the supported spouse’s need for spousal support will in fact spouse’s need for spousal support will in fact decrease to the level contemplated at each decrease to the level contemplated at each stepdown date.stepdown date.

17


d) d) Reservation of JurisdictionReservation of Jurisdiction This contemplates payment of spousal support This contemplates payment of spousal support

for a period of time with a specific termination for a period of time with a specific termination date as to the amount paid, but with no date as to the amount paid, but with no termination date as to the jurisdiction to termination date as to the jurisdiction to modify spousal support should circumstances modify spousal support should circumstances develop in the future.develop in the future.

See example on page 216.See example on page 216. A A Richmond orderRichmond order is an award of spousal is an award of spousal

support that contemplates termination on a support that contemplates termination on a specific date in the future unless the supported specific date in the future unless the supported spouse successfully brings a motion to spouse successfully brings a motion to continue support continue support before the termination datebefore the termination date..

18


e) e) The Lengthy MarriageThe Lengthy Marriage Family Code section 4336 provides that: “For Family Code section 4336 provides that: “For

the purpose of retaining jurisdiction, there is a the purpose of retaining jurisdiction, there is a presumption affecting the burden of producing presumption affecting the burden of producing evidence, that a marriage of 10 years or more, evidence, that a marriage of 10 years or more, from the date of marriage to the date of from the date of marriage to the date of separation, is a marriage of long duration.”separation, is a marriage of long duration.”

This ten-year “cut-off” date is not absolute.This ten-year “cut-off” date is not absolute. Indeed, cases have held that marriages shorter Indeed, cases have held that marriages shorter

than ten years in duration have been lengthy, than ten years in duration have been lengthy, and other cases have found that marriages and other cases have found that marriages over ten years have failed to be lengthy.over ten years have failed to be lengthy.

19


The ultimate determination and The ultimate determination and finding on the issue of whether or not finding on the issue of whether or not this is a marriage of “long duration” this is a marriage of “long duration” rests within the sound discretion of rests within the sound discretion of the trial court and is fundamentally a the trial court and is fundamentally a factual determination.factual determination.

For purposes of calculating the length For purposes of calculating the length of the marriage, the period of time of the marriage, the period of time that the parties may have cohabited that the parties may have cohabited on a nonmarital basis is not included.on a nonmarital basis is not included.

20

6. SELECTED ISSUES 6. SELECTED ISSUES REGARDING SUPPORTREGARDING SUPPORT

Spousal support is designed to Spousal support is designed to provide an equitable balance provide an equitable balance between the parties and some sort of between the parties and some sort of equanimity in their reasonable equanimity in their reasonable expectations.expectations.

This can, and very often does, This can, and very often does, extend beyond the mere concept of extend beyond the mere concept of payment of a specific dollar amount payment of a specific dollar amount per month.per month.

21


a) a) CohabitationCohabitation Family Code section 4323 establishes a Family Code section 4323 establishes a

rebuttable presumption of decreased need on rebuttable presumption of decreased need on the part of the supported spouse if that person the part of the supported spouse if that person is cohabitating with a person of the opposite is cohabitating with a person of the opposite sex.sex.

The effect of this code section is to place the The effect of this code section is to place the burden on the supported spouse of burden on the supported spouse of demonstrating to the court that her needs have demonstrating to the court that her needs have not in fact decreased by virtue of the not in fact decreased by virtue of the nonmarital relationship, ostensibly providing nonmarital relationship, ostensibly providing an effective defense to a supporting spouse’s an effective defense to a supporting spouse’s request to reduce amounts being paid.request to reduce amounts being paid.

22


b) b) Health InsuranceHealth Insurance Various sections of California law provide that all Various sections of California law provide that all

group disability insurance and health insurance group disability insurance and health insurance offered in California must give the insured the right offered in California must give the insured the right to convert his or her policy from a group policy to an to convert his or her policy from a group policy to an individual policy without requiring further evidence individual policy without requiring further evidence of insurability.of insurability.

Additionally, the Consolidated Omnibus Additionally, the Consolidated Omnibus Reconciliation Act of 1985 (COBRA) provides the Reconciliation Act of 1985 (COBRA) provides the ability of a nonemployee to continue to participate in ability of a nonemployee to continue to participate in the employer’s group health insurance plan for a the employer’s group health insurance plan for a period of up to three years following a change in period of up to three years following a change in status from employee to nonemployee or from a status from employee to nonemployee or from a termination of status as the employee’s dependent.termination of status as the employee’s dependent.

23


c) c) Security for Payment of Spousal Security for Payment of Spousal SupportSupport

Unless otherwise agreed by the parties, Unless otherwise agreed by the parties, a spousal support order will typically a spousal support order will typically terminate at the death of either party.terminate at the death of either party.

Family Code section 4360 is designed Family Code section 4360 is designed to address this situation.to address this situation.

That section provides, in pertinent That section provides, in pertinent part, that: see page 221.part, that: see page 221.

24


Such an order most likely will be granted in Such an order most likely will be granted in situations where age, infirmity, and employability situations where age, infirmity, and employability of the supported spouse make it highly likely that of the supported spouse make it highly likely that he will never be able to become fully self-he will never be able to become fully self-supporting following the dissolution and will supporting following the dissolution and will therefore continue to require support long after therefore continue to require support long after the supporting spouse has died.the supporting spouse has died.

Typical security devices would include a lien on the Typical security devices would include a lien on the supporting spouse’s property, a bond, the supporting spouse’s property, a bond, the appointment of a receiver, or even a wage appointment of a receiver, or even a wage assignment for payment.assignment for payment.

California law now provides for a California law now provides for a mandatorymandatory issuance of a wage assignment to secure spousal issuance of a wage assignment to secure spousal support orders.support orders.

25

B. MODIFICATION OF B. MODIFICATION OF SPOUSAL SUPPORTSPOUSAL SUPPORT

As is the case with child support, the party As is the case with child support, the party requesting modification of spousal support requesting modification of spousal support must demonstrate to the court’s satisfaction must demonstrate to the court’s satisfaction that some change in circumstances has that some change in circumstances has occurred subsequent to the entry of the prior occurred subsequent to the entry of the prior order.order.

This could be demonstrated by the supported This could be demonstrated by the supported spouse’s failure to become self-supporting, the spouse’s failure to become self-supporting, the unexpected failure of the court’s expectations unexpected failure of the court’s expectations with regard to its earlier orders, or a significant with regard to its earlier orders, or a significant change in the financial situation of either the change in the financial situation of either the supported or supporting spouse.supported or supporting spouse.

26

B. MODIFICATION OF B. MODIFICATION OF SPOUSAL SUPPORTSPOUSAL SUPPORT

An order for spousal support will not An order for spousal support will not be modified or terminated to the be modified or terminated to the extent an agreement, either written extent an agreement, either written or oral (entered into in open court or oral (entered into in open court between the parties), specifically between the parties), specifically provides that the spousal support provides that the spousal support order is not subject to modification order is not subject to modification or termination.or termination.

california family law for paralegals, 5 th ed. chapter six spousal support

Documents

party proper support

child support

spousal support slide

spousal support awards

general duty of support

proposed supported party

party cohabitating

family code sections