When You Need An Experienced Family Law Attorney Kinsey Law Offices Eugene E. Kinsey Seal Beach, CA (562) 596-8177 Since 1976 -Negotiation - - Settlement - - Trial - E-Mail Us

Modifiability Of Spousal Support (Alimony) Orders

Spousal support awards and agreements, temporary as well as "permanent," are modifiable throughout the support period except as to amounts accrued prior to filing of application for modification and except as otherwise provided by agreement of the parties. [Ca Fam §§ 3603, 3651(c), 4333]

Unlike child support jurisdiction, spousal support jurisdiction does not necessarily continue postjudgment and may be divested by the terms of the order. Unless jurisdiction to award spousal support has been either expressly reserved by the order or impliedly reserved (pursuant to Ca Fam § 4336), postjudgment spousal support is limited by the stated duration of the order. [Ca Fam § 4335]

Exception: In marriages of "long duration" (presumptively 10 years or longer), the court is deemed to retain spousal support jurisdiction "indefinitely" (notwithstanding the absence of an express reservation of jurisdiction) absent written agreement of the parties to the contrary or a court order terminating spousal support. [Ca Fam § 4336(a) & (b)]

A retention of spousal support jurisdiction after a "lengthy" marriage does not limit the court's discretion to terminate spousal support in later proceedings on a showing of changed circumstances. [Ca Fam § 4336(c)]

Nonmodifiable Spousal Support Orders:

Orders Expressly Made Nonmodifiable: A spousal support order may not be modified or terminated to the extent the parties' written agreement or, if no written agreement, their oral agreement entered into in open court, expressly provides spousal support is not subject to modification or termination. [Ca Fam § 3651(d)]

Orders Of Fixed Duration: Once the spousal support period expires in accordance with a clear and unequivocal termination date or terminating event, the court has no jurisdiction to extend further support unless it retained jurisdiction expressly or impliedly under Ca Fam § 4336 in its most recent order. [Ca Fam § 4335]

However, a specified termination date does not divest the court of jurisdiction to extend support past the termination date if the order did not otherwise explicitly preclude judicial modification (Ca Fam §§ 3591(c), 3651(d)]

Modifiability Of Spousal Support Agreements

The court's authority to modify spousal support agreements is governed by Ca Fam §§ 3590-3593.

The provisions of an agreement for spousal support are subject to subsequent court-ordered modification or termination except as to amounts accrued before the date of filing the motion or OSC to modify or terminate and except to the extent the parties expressly agreed otherwise. [Ca Fam § 3591(a),(b),(c)]

An agreement for spousal support may not be modified or revoked to the extent the parties' written agreement or, if no written agreement, their oral agreement entered into in open court, "specifically provides that the spousal support is not subject to modification or termination." [Ca Fam § 3591(c) (emphasis added)]

Modifiability Of Spousal Support Orders Issued Outside California

A California court has no jurisdiction to modify a sister state spousal support order for so long as the issuing state has continuing exclusive jurisdiction over the order under its state's law. [Ca Fam § 4909(f)]

Conversely, a California court issuing a spousal support order consistent with California law has continuing exclusive jurisdiction over the order through the existence of the support obligation. Therefore, no other state may exercise jurisdiction to modify a California spousal support order. [Ca Fam § 4909(f)]

Basis For Modification - Material Change In Circumstances

Assuming continuing spousal support jurisdiction, a spousal support modification may be granted only if the party seeking the modification shows a material change of circumstances since the most recent order.

Whether a spousal support modification is warranted "depends upon the facts and circumstances of each case, and its propriety rests in the sound discretion of the trial court . . ." [Marriage of Olson (1993) 14 Cal.App.4th 1, 7, 17 Cal.Rptr.2d 480, 485; Marriage of Tydlaska, supra, 114 Cal.App.4th at 575, 7 Cal.Rptr.3d at 595-596] So long as the trial court exercised its discretion along legal lines, its decision will not be disturbed on appeal if there is substantial evidence to support it. Reversal requires a clear showing of abuse of discretion.

A court abuses its discretion, however, when it modifies spousal support without substantial evidence of a material change of circumstances (see Marriage of Lautsbaugh (1999) 72 Cal.App.4th 1131, 1133-1134, 85 Cal.Rptr.2d 688, 690).

While proof of changed circumstances is required for a modification, the converse is not necessarily true: i.e., the court is not bound to alter or terminate support simply because one party has proven some change. There must be a substantial, material change.

Furthermore, if the change in circumstances causing a reduction in the obligor's income was within the obligor's control, the trial court properly exercises discretion to deny a requested downward modification

Factors Considered In Determining Whether There Has Been A Change In Circumstances Warrenting A Spousal Support Modification

As with the fixing of an initial spousal support order, a court asked to modify spousal support must consider and weigh all of the appropriate spousal support factors under Ca Fam § 4320. Those factors are:

1. Ability to maintain marital standard of living in light of earning capacities: The extent to which the parties' respective earning capacities are sufficient to maintain the standard of living established during the marriage (Ca Fam § 4320(a)).

2. Contributions to other spouse's education, training, etc.:
The extent to which the supported spouse contributed to the other spouse's attainment of an education, training, career position or license. [Ca Fam § 4320(b)] Section 4320(b) is a companion to Ca Fam § 2641, which creates a right of reimbursement for community contributions to one spouse's education or training that "substantially enhances" the spouse's earning capacity.

3. Supporting spouse's ability to pay: The supporting spouse's ability to pay spousal support, taking into account his or her earning capacity, earned and unearned income, assets, and standard of living. [Ca Fam § 4320(c)]

Note: 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--i.e., the obligor's present (not past or future) circumstances (current income/cash flow, assets, earning capacity, etc.) control.

 

4. "Needs" in light of marital standard of living: The needs of each party based on the standard of living established during the marriage. [Ca Fam § 4320(d)] "Need" includes more than "bare necessities of life." But § 4320(d) expressly codifies well-established case law consensus that "need" must also be judged in terms of the parties' station in life during marriage and before separation.

5. Parties' assets and debts: The parties' respective assets and obligations, including the separate property of each. [Ca Fam § 4320(e)] Thus, aspouse's separate estate (including assets allocated to each as a result of the community property division)--and the reasonable income potential therefrom--may require the "withholding" of support altogether or a termination of previously-awarded support. [Ca Fam § 4321(a)]

6. Duration of marriage. [Ca Fam § 4320(f)] The length of the parties' marriage bears both on the "need" for support (whether it should be ordered) and on the amount and duration. The longer a spouse has been out of the job market on account of the marriage, the stronger the case for granting support; by the same token, a relatively short marriage can, depending on the other § 4320 factors and the "totality of the circumstances," offset alleged "need" and justify a lower level of support and/or a shorter support term.

7. Employability of custodial spouse vs. impact on children: The ability of the supported spouse to engage in gainful employment without interfering with the interests of dependent children in his or her custody. [Ca Fam § 4320(g)] Section 4320(g) recognizes the overriding public policy concern for the welfare of the parties' minor children. Theoretically, e.g., weighing all relevant circumstances, the needs of young children may justify indefinite spousal support to a custodial parent even after a relatively short marriage.

8. Age and health of the parties. [Ca Fam § 4320(h)] On balance and after weighing all of the § 4320 factors, age and health may warrant either an extension or withholding of support. Age and health considerations are also particularly relevant to the question of duration of support.

9. History of domestic violence: Documented evidence of any history of domestic violence (as defined in Ca Fam § 6211) between the parties, 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. [Ca Fam § 4320(i)]

10. Tax consequences: The immediate and specific tax consequences of spousal support to each party (e.g., who pays the taxes, who gets the deduction, what effect on net income). [Ca Fam § 4320(j)]

11. Relative hardships: "The balance of hardships to each party." [Ca Fam § 4320(k)] This factor seems to underscore the court's obligation to consider and weigh all of the § 4320 circumstances in determining the appropriate amount and duration of spousal support.

12. Goal of self-support: "The goal that the supported party shall be self-supporting within a reasonable period of time." [Ca Fam § 4320(l) (e)] Except in marriages of long duration (as described in Ca Fam § 4336, a "reasonable period of time" within which to achieve the goal of self-support "generally shall be one-half the length of the marriage." [Ca Fam § 4320(l)]

13. Spousal abuse conviction (mandatory factor for support reduction/termination): The criminal conviction of an abusive spouse is a mandatory factor to be considered in making a reduction or termination of spousal support in accordance with Ca Fam § 4325. [Ca Fam § 4320(m)]

14. Other "just and equitable" factors: "Any other factors the court determines are just and equitable." [Ca Fam § 4320(n)] This final factor is a "catch-all," clarifying the court's authority to consider any other circumstances, although not expressly codified, bearing on the propriety of awarding support and, if so, its amount and duration.

Burden Of Proof In Motion For An Increase In Spousal Support

Before a motion for upward spousal support modification may be considered, the moving party must demonstrate either (1) the prior order, when made, was not sufficient to meet his or her reasonable needs at that time as measured by the applicable Ca Fam § 4320 factors, or (2) the reasonable cost of satisfying those needs has since increased. Having met that burden, the moving party must then prove the obligor's ability to pay increased support.

On the issue of whether the prior order satisfied "reasonable needs," the marital standard of living is only one factor that enters into the balancing process. The trial court has broad discretion in determining the spousal support issue; having considered and weighed all the applicable § 4320 factors, it may 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 "in order to achieve a just and reasonable result under the facts and circumstances of the case." [Marriage of Smith, supra, 225 Cal.App.3d at 484-486, 274 Cal.Rptr. at 920]

Burden Of Proof For Step-Down Modification

Family Code Section 4320 Factors: In lowering or terminating spousal support, the court must consider and weigh all of the appropriate spousal support factors under Ca Fam § 4320. (enumerated above)

Passage Of Time: Traditionally, the passage of time from the entry of the support order may be considered in lowering spousal support but it is not alone a sufficient basis for modification; i.e., it is the change in circumstances (job, income, health, age, etc.), and not the mere passage of time, that is material.

However, as a practical matter, the California Legislature has, in effect, endorsed "passage of time" as a potential basis for support modification or termination when it codified the policy goal that a supported spouse become self-supporting within a "reasonable period of time," generally deemed to be one-half the length of the marriage. [See Ca Fam § 4320(l)]

Support Party's Separate Estate: Support cannot be continued if there are no minor children and the supported party has acquired a separate estate, including income from employment, sufficient for his or her proper support. In such circumstances, the court must grant a motion to terminate the support order. [Ca Fam § 4322]

And on the question of sufficiency for proper support, the court may consider both income presently produced by the separate estate and (at least where the obligee's investment strategy is challenged) reasonable income potential.

But where the supported spouse has dissipated his or her separate estate, that (either alone or in conjunction with employment earnings) would have been sufficient to provide self-support, through improvident investments and mismanagement, spousal support may be terminated. The supported spouse will not be rewarded for mismanagement of his/her estate.

Supported Spouse's Domestic Violence Conviction: Even though it may have no bearing on the parties' financial circumstances, the criminal conviction of a spouse for the perpetration of domestic violence against the other spouse (presumably also meaning ex-spouses) "shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4325." [Ca Fam § 4320(m)] Ca Fam § 4325 creates a rebuttable presumption affecting the burden of proof that any spousal support award to an abusive spouse should not be made.

Automatic Alimony Termination Upon Remarriage: Unless the parties "otherwise agreed in writing," a spousal support order automatically terminates upon the supported party's remarriage. [Ca Fam § 4337]

Cohabitation With Member Of The Opposite Sex: Unless the parties have "otherwise agreed" in writing, the supported party's cohabitation with a person of the opposite sex gives rise to a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support. [Ca Fam § 4323(a)(1)]

An obligor seeking a spousal support reduction or termination need simply show the obligee is now "cohabiting with a person of the opposite sex." However, the statute contemplates more than a simple roommate or "boarding arrangement." There must be a showing of a sexual, romantic or at least a "homemaker-companion" relationship.

Supporting Spouse's Retirement: The supporting party's retirement or other cessation of gainful employment may be a sufficient changed circumstance to warrant a decrease in or termination of the support obligation. A support obligor who has reached normal retirement age (age 65) cannot be compelled to continue working simply to pay spousal support at the current level. It is therefore error to impute earning capacity to an age-65 retired obligor based on his or her earnings when employed.

Moreover, having retired at normal retirement age, the obligor cannot be required to invade investment principal to continue paying spousal support. Only investment income may be considered.

On the other hand, where the supporting spouse takes early retirement and his/her ability and opportunity to work are present, courts may properly decline a spousal support reduction. Here again, the court's decision must be based upon all of the Ca Fam § 4320 factors.

Temporary Reduction In Supporting Spouse's Income: Some "changed circumstances" are only temporary--e.g., the support payor loses his or her job and thus suffers a drop in income until becoming reemployed. Where the change is not likely to permanently restrict the supporting spouse's ability to pay, and the supported party has not suffered a change in the level of need, the court may order that support payments be decreased by an appropriate amount only for the duration of the "economic disability."

Bankruptcy Discharges: A modification decreasing spousal support may lie where a property division debt owed by the supported spouse is discharged in bankruptcy, forcing the supporting spouse to satisfy the discharged liability. When the support obligee has significantly reduced his or her indebtedness through bankruptcy, which concomitantly increases the obligations to be met by the support obligor, there is a change in the parties' economic positions warranting a reduction (or perhaps termination) of spousal support.

Conversely, it may be proper to increase, and/or extend the duration of, spousal support where the supporting spouse obtains a bankruptcy discharge of a property division debt.

Modification Procedure

Modification proceedings must ordinarily be commenced in the court where the underlying order or judgment was rendered.

Since both parties were subject to the court's jurisdiction in the underlying action, the party seeking modification may proceed either by Order To Show Cause ("OSC") or notice of motion (Ca Rules of Court Rule 5.118).

Financial information must be current as of the time of the hearing. Where the only evidence in support of the modification request is an outdated income and expense declaration, the court properly acts within its discretion in denying the motion outright.

Absent an order shortening time all moving papers must be served in sufficient time before the hearing to comply with the Ca Civ Pro § 1005(b) minimum notice rules (ordinarily, at least 16 court days before the hearing, but longer if service is effected by mail, express mail, other overnight delivery method or fax.).

The parties must be prepared to present their positions fully in their moving and opposing declarations. Whether testimonial evidence will be allowed generally lies solely within the court's discretion.