RAISE, LOWER, OR TERMINATE
SPOUSAL SUPPORT (ALIMONY)
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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) &
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)]
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
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,
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
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:
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
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
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
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
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
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
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 §
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
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 §
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
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 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
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