Under California Law, Marriage imposes a mutual duty of support on both parties. This means that both parties to a marriage have a duty to support the other (as detailed in California Family Code § 720, 4300).
This duty arises only after the occurrence of a valid marriage. Hudson v. Hudson (1959) 52 Cal. 2d 735, 738, 344 P.2d 295. If there is no legal marriage, then no spousal support is owed. Marvin v. Marvin (1976) 18 Cal. 3d 660, 684. Put another way, there is no statutory duty of support between nonmarital cohabitants or parties to a void or invalid marriage.
The California Family Code applies to all jurisdictions in California, and many localities/municipalities supplement the code with local provisions. Below you will find information specific to both the California code, as well as local codes specific to Marin County, California.
Awarding Spousal Support (A.K.A. Alimony)
Following a judgment of dissolution or legal separation, a court may order a party to pay for the support of the other party “an amount, for a period of time, that the court determines is just and reasonable, based on the standard of living established during the marriage, taking into consideration the circumstances.” Family Code § 4330(a).
The court will consider several factors in determining the award of spousal support. These factors are listed in Family Code § 4320 and are as follows:
(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
(1) The marketable skills of the supported party; 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; and the possible need for retraining or education to acquire other, more marketable skills or employment.
(2) The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
(b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.
(c) The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.
(d) The needs of each party based on the standard of living established during the marriage.
(e) The obligations and assets, including the separate property, of each party.
(f) The duration of the marriage.
(g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
(h) The age and health of the parties.
(i) Documented evidence of any history of domestic violence, as defined in Section 6211 between the parties or perpetrated by either party against either party’s child, 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.
(j) The immediate and specific tax consequences to each party.
(k) The balance of the hardships to each party.
(l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336 a “reasonable period of time” for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.
(m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4324.5 or 4325.
(n) Any other factors the court determines are just and equitable.
The court has extremely broad discretion in awarding spousal support and may deny or limit spousal support to an amount and duration that reflects the ability of the parties to provide for their own needs. Marriage of Pendleton & Fireman (2000) 24 C4th 39, 52, 99 CR2d 278, 288.
One factor that courts will not consider in awarding spousal support is the income of a supported spouse’s new partner. Courts are barred by statute from considering the income of a supported spouse’s partner, even if the supported spouse enters into a valid marriage with a new partner who is well off. California Family Code § 4323(b). Marriage of Lynn (2002) 101 Cal. App. 4th 120, 133, 123 Cal. Rptr. 2d 611, 621.
Temporary Spousal Support
Courts have the discretion to award temporary spousal support while dissolution of the marriage is pending. In determining whether to award temporary spousal support, the court will consider all the factors listed in Family Code § 4320, however, most courts will make their determination based on the income of each party, subject to certain deductions.
If the court orders temporary spousal support, it will be paid monthly by a party until there is a further court order or the final order is entered. Family Code § 3600. Upon entry of the final order, the temporary spousal support will typically cease or be replaced by long-term spousal support.
Long-Term (Permanent) Spousal Support
Unlike temporary spousal support which is often based on the income of each spouse subject to certain allowable deductions, permanent spousal support decisions must reflect the marital standard of living and the factors of Family Code § 4320.
Marital Standard of Living
The court must consider the standard of living established during the marriage as stated in Family Code § 4330(a). The marital standard of living is intended to be a general description of the station in life the parties had achieved by the date of separation. It is essentially a reflection of the lifestyle the parties have become accustomed to. The court is required to make specific factual findings regarding the marital standard of living whether or not it is requested to do so. Family Code § 4332. This standard of living, and the factors of Family Code § 4320 is what the court weighs in determining long-term spousal support.
Family Code Section 4320
These are the same factors listed above that the court considers when awarding spousal support. Due to the highly varied circumstances of family law, the court has broad discretion in awarding spousal support. Typically, awards are reduced down to issues of employability and capacity for self-sufficiency.
The goal of long-term spousal support is to facilitate the supported spouse’s re-entry to the job market. In instances where a supported spouse has an impaired earning capacity from devoting time to domestic duties, the need for spousal support is higher. Where a supported spouse has a marketable skillset and can find employment with relative ease, the necessity for spousal support is lower. Marriage of Brantner (1977) 67 CA3d 416, 420.
The supported spouse must also exercise due diligence in seeking employment. A failure to exercise due diligence in seeking employment could result in a modification or denial of spousal support. Marriage of Mason (1979) 93 CA3d 215, 221.
Should questions regarding the necessity of spousal support arise, the court may order the supported spouse to submit to an examination by a vocational training consultant to determine issues of employability. Family Code § 4331.
Supporting Spouse’s Ability to Pay
The court will also consider a supporting spouse’s ability to pay spousal support. 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. Marriage of Rosen (2002) 105 CA4th 808, 824, 130 CR2d 1, 10. Note that deliberate attempts to avoid support responsibilities by suppressing income or quitting work will typically fail. Philbin v. Philbin (1971) 19 CA3d 115, 119, 121, 96 CR 408, 411-412
Duration of Spousal Support
The court has broad discretion to determine duration of spousal support, however, the duration of the marriage gives rise to certain presumptions. Marriages of ten or more years are presumed “long-term” and courts are inclined to award longer durations of spousal support, even indefinite awards. Family Code § 4336. Marriages of less than ten years are presumed “short-term” and courts will typically award spousal support for a duration of half the length of the marriage. The duration of the marriage merely creates a presumption; the court will consider all relevant factors in determining the appropriate duration of spousal support. Marriage of Heistermann (1991) 234 CA3d 1195, 1202, 286 CR 127, 132.
Modification of Support
Modification of a standing spousal support order will only be granted upon a showing of a material change in circumstances. For example, if the supporting spouse was laid-off through no fault of his or her own, then the circumstances will have materially changed, and the supporting spouse could seek modification of spousal support. Family Code § 4336(c).
Termination of Spousal Support
The obligation to pay spousal support will terminate automatically upon the death of either party or the remarriage of the supported party. Outside of these two occurrences, termination may be granted under certain factual circumstances. Termination must be based on present circumstances, not speculative future occurrences. Marriage of Morrison (1978) 20 C3d 437, 453, 143 CR 139, 150. Courts tend to disfavor absolute termination on a specific future date. Marriage of Christie (1994) 28 CA4th 849, 858, 35 CR2d 135, 139. Rather than imposing absolute termination dates, courts will implement “Richmond orders” or Step-down orders.”
This is a contingent termination of spousal support whereby an order terminating spousal support on a certain date will be upheld, unless, prior to the fixed termination date, the supported spouse files a motion showing good cause to modify the amount and/or duration. Marriage of Richmond (1980) 105 CA3d 352, 356, 164 CR 381, 383-386. The supported spouse must be made aware of the expectation that he or she become self-sufficient. Marriage of Gavron (1988) 203 CA3d 705, 711-712, 250 CR 148, 152-153.
This an order whereby the court will require the supporting spouse to pay spousal support in decreasing amounts over a period of time. The purpose of a step-down order is to encourage self-sufficiency of the supported spouse as the amount they receive in spousal support decreases. Much like the Richmond order, it puts the burden on the supported spouse to seek modification if circumstances change making self-sufficiency difficult or unachievable. Marriage of West (2007) 152 CA4th 240, 248-249, 60 CR3d 858, 856.
Local Rule 6.13 requires additional supplemental documentation in proceedings where child or spousal support is an issue. In addition to filing fully completed Income and Expense Declarations, each party is required to serve on the opposing party and lodge under seal the following additional financial information:
- Copies of the party’s two most recent state and federal income tax returns and all K-1’s for those years;
- Documentation of all income of the filing party since the period covered by his or her most recent tax return (including W-‘2, 1099’s and K-1’s); and
- Copies of the two most recent federal income tax returns filed by any entity in which the party has or has had a 24% or greater interest within the past two years.
Additionally, a self-employed party shall provide his or her most recent annual business profit and loss or financial statement, together with current year to date profit and loss or financial statement for the business.
The rule further states, that in all matters where child or temporary spousal support is an issue, a support calculation and explanatory declaration shall be filed, setting forth the assumptions and calculations utilized by that party.
Local Rule 6.14 gives rise to additional presumptions for temporary spousal support as follow:
- In cases where the recipient of spousal support is not receiving child support from the same payor, the presumed temporary spousal support will be 40% of the net income of the payor less 50% of the net income of the payee.
- In cases where the recipient of spousal support is also the recipient of child support from the same payor, the presumed temporary spousal support will be 35% of the net income of the payor (after deduction of child support), less 45% of the net income of the payee (without addition of child support).
The Court may deviate from the presumed level of temporary spousal support, in its discretion, for good cause shown.
This article should not be relied on as a legal opinion and you should consult an attorney to determine how your specific facts will be applied to the law.