Divorce And Child Support

Spousal support and support modification

Under California law, spouses must support each other while living together. On the other hand, if spouses are not living together there is generally no duty of support, unless there was an explicit agreement to continue to provide support or the court has made those orders in a legal proceeding.

Most commonly, spousal support orders are issued either during the dissolution of a marriage, or for a period of time that is just and reasonable following the dissolution of a marriage. It will be based on the standard of living established during the marriage. That standard of living, while not the sole focal point in this determination, is a reference point against which other factors are weighed.

In general, a spousal support award is not mandatory in a dissolution of a marriage proceeding. It is up to the court's discretion. While there are statutory parameters to follow, the court has discretion to either deny support, or limit it to an amount and duration that reflects the ability of the parties to provide for their own needs. The trial court's decision will only be changed on appeal if it is determined that there was an abuse of discretion.

There are 14 factors that the court must consider and weigh, but the final decision is the court's and it has broad discretion. The factors are as follows:

1. Extent to which earning capacity is sufficient to maintain the standard of living.
2. Extent to which supported party contributed to the attainment of an education or career position of the supporting party.
3. The ability of the supporting party to pay.
4. The needs of each party.
5. The obligations and assets of each party.
6. The duration of the marriage.
7. The ability of the supported party to work.
8. The age and health of the parties.
9. Any history of domestic violence.
10. The tax consequences of support.
11. The balance of hardships.
12. The goal that both parties are self-supporting.
13. Any criminal convictions.
14. Other factors the court determines are just and equitable.

The calculation of spousal support is very fact-specific to a given case. In some cases there may be no support, or for a very short time. In other cases it may be significant, even for the remainder of someone's life. Of course, in between these extremes are a multitude of situations, such as paying until the spouse completes education, or paying so they can stay at home and raise the children, or until they are self-supporting in a reasonable amount of time, for instance.

Spousal support may be modified. For example, if the supported party is no longer in need, or the party paying lost the ability to pay or there was a change in circumstances, then the order for support may be terminated. Another way that it may be terminated is if the receiving party failed to make good faith efforts to be self-sufficient within a reasonable amount of time. The court can also look to any and all of the aforementioned 14 factors and see if things have changed, which might justify terminating support.

However, if the parties stipulated that the spousal support award shall be “absolutely non-modifiable” as to amount or duration, a court may not terminate the support earlier than the terms dictate.