1. CALIFORNIA FAMILY LAW FOR PARALEGALS, 5 th Ed. Chapter Six Spousal Support

2. 2 A. SPOUSAL SUPPORT The Code section that provides the reciprocal obligation of spouses to support each other is Family Code section 4300. The Code section that provides the reciprocal obligation of spouses to support each other is Family Code section 4300. Section 4300 provides as follows: “Subject to this division, a person shall support the person’s spouse.” Section 4300 provides as follows: “Subject to this division, a person shall support the person’s spouse.” Family Code section 4320 has established a very thorough list of certain factors and circumstances to be considered when considering the circumstances under which spousal support should be awarded. Family Code section 4320 has established a very thorough list of certain factors and circumstances to be considered when considering the circumstances under which spousal support should be awarded. See pages 202 and 203. See pages 202 and 203.

3. 3 1. PRELIMINARY CONSIDERATIONS Despite these factors, there are circumstances under which the court has been empowered to deny support. Despite these factors, there are circumstances under which the court has been empowered to deny support. Specifically, Family Code sections 4321 and 4322 provide that in a judgment of dissolution of marriage or legal separation of the parties, the court is empowered to deny support to a party out of the separate property of the other party when the proposed supported party has her own separate property or is earning a livelihood sufficient to give that party proper support. Specifically, Family Code sections 4321 and 4322 provide that in a judgment of dissolution of marriage or legal separation of the parties, the court is empowered to deny support to a party out of the separate property of the other party when the proposed supported party has her own separate property or is earning a livelihood sufficient to give that party proper support.

4. 4 1. PRELIMINARY CONSIDERATIONS With regard to this general duty of support, unlike child support there is a direct correlation between a proposed supported or supporting party cohabitating with a person of the opposite sex. With regard to this general duty of support, unlike child support there is a direct correlation between a proposed supported or supporting party cohabitating with a person of the opposite sex. There will be rebuttable presumption affecting the burden of proof of a decreased need for spousal support if the supported party is cohabiting with a person of the opposite sex. There will be rebuttable presumption affecting the burden of proof of a decreased need for spousal support if the supported party is cohabiting with a person of the opposite sex.

5. 5 1. PRELIMINARY CONSDERATIONS Family Code section 4331 sets out the availability for an examination of the potential supported spouse by a vocational training consultant. Family Code section 4331 sets out the availability for an examination of the potential supported spouse by a vocational training consultant. The court is granted a great deal of discretion with regard to spousal support awards, including arriving at its ultimate decision as to the amount, duration, and whether to obtain jurisdiction to modify the spousal support. The court is granted a great deal of discretion with regard to spousal support awards, including arriving at its ultimate decision as to the amount, duration, and whether to obtain jurisdiction to modify the spousal support. The only real requirement of the court is that all of the factors in section 4320 factors be considered and given due weight. The only real requirement of the court is that all of the factors in section 4320 factors be considered and given due weight. The court further has the power to make an order of spousal support retroactive in effect not only to the date of the filing of the noticed motion or order to show cause, but even to the date of filing the petition itself. The court further has the power to make an order of spousal support retroactive in effect not only to the date of the filing of the noticed motion or order to show cause, but even to the date of filing the petition itself.

6. 6 1. PRELIMINARY CONSIDERATIONS In the absence of a written agreement, the court must retain jurisdiction indefinitely in a proceeding for dissolution of marriage or legal separation over the issue of spousal support where the marriage has been one of long duration. In the absence of a written agreement, the court must retain jurisdiction indefinitely in a proceeding for dissolution of marriage or legal separation over the issue of spousal support where the marriage has been one of long duration. There is a presumption affecting the burden of producing evidence that a marriage of ten years or more, from the date of marriage to the date of separation, is a marriage of long duration. There is a presumption affecting the burden of producing evidence that a marriage of ten years or more, from the date of marriage to the date of separation, is a marriage of long duration. A court-ordered spousal support award, unless specified to the contrary in a written agreement by the parties, will terminate on the death of either party or the remarriage of the supported party. A court-ordered spousal support award, unless specified to the contrary in a written agreement by the parties, will terminate on the death of either party or the remarriage of the supported party.

7. 7 1. PRELIMINARY CONSIDERATIONS With regard to the death of either party the court does have the power to require, under certain circumstances, that the supporting spouse maintain insurance for the benefit of the supported spouse to ensure that support can continue after the supporting spouse’s death. With regard to the death of either party the court does have the power to require, under certain circumstances, that the supporting spouse maintain insurance for the benefit of the supported spouse to ensure that support can continue after the supporting spouse’s death. Spousal support cannot be ordered or withheld to reward or punish either party, and the court is prohibited from conducting any examination into the “bad faith” or “good faith” of either party in making its award of spousal support (with the obvious exception of proceedings involving “putative” support, where the designation as a “putative spouse” is dependent upon a finding of fault. Spousal support cannot be ordered or withheld to reward or punish either party, and the court is prohibited from conducting any examination into the “bad faith” or “good faith” of either party in making its award of spousal support (with the obvious exception of proceedings involving “putative” support, where the designation as a “putative spouse” is dependent upon a finding of fault.

8. 8 2. FACTORS CONSIDERED IN AN AWARD OF SUPPORT Although the Code provides the factors that must be considered, little else exists to provide guideposts or points of reference when determining the amount of a spousal support award once all of these factors have been considered. Although the Code provides the factors that must be considered, little else exists to provide guideposts or points of reference when determining the amount of a spousal support award once all of these factors have been considered. The court undertakes an extensive review of the supported spouse’s ability to reenter the job market with an eye toward providing support for that person only until he or she can “come up to speed” and effectively compete in the job market. The court undertakes an extensive review of the supported spouse’s ability to reenter the job market with an eye toward providing support for that person only until he or she can “come up to speed” and effectively compete in the job market. The court has wide latitude to order the supported spouse to attend vocational rehabilitation counseling. The court has wide latitude to order the supported spouse to attend vocational rehabilitation counseling.

9. 9 2. FACTORS CONSIDERED IN AN AWARD OF SUPPORT A vocational rehabilitation counselor is typically an individual who has significant experience in job analysis and job placement. A vocational rehabilitation counselor is typically an individual who has significant experience in job analysis and job placement. A request for a vocational rehabilitation examination must be the subject of a noticed motion wherein one spouse is requesting that the court compel the other spouse to submit to such an examination. A request for a vocational rehabilitation examination must be the subject of a noticed motion wherein one spouse is requesting that the court compel the other spouse to submit to such an examination. Family Code section 4331 establishes the statutory authority for this examination as well as the minimum qualifications in order to be accepted by the court as a “vocational training counselor.” Family Code section 4331 establishes the statutory authority for this examination as well as the minimum qualifications in order to be accepted by the court as a “vocational training counselor.” These minimum qualifications, as listed in the Code, are as follows: see page 208. These minimum qualifications, as listed in the Code, are as follows: see page 208.

10. 10 3. STRUCTURE OF THE AWARD There are essentially two phases of spousal support: temporary and permanent. There are essentially two phases of spousal support: temporary and permanent. They serve different functions, and there are different guidelines and factors to be considered pertinent to the consideration of each. They serve different functions, and there are different guidelines and factors to be considered pertinent to the consideration of each. A temporary award of spousal support contemplates payment of support during that period of time between the filing of the petition and the time of trial. A temporary award of spousal support contemplates payment of support during that period of time between the filing of the petition and the time of trial. A permanent award of spousal support is contemplated to cover the period of time post trial. A permanent award of spousal support is contemplated to cover the period of time post trial.

11. 11 4. TEMPORARY SUPPORT Temporary support is ordered during that period of time between the filing of the petition and the trial of the matter before the court. Temporary support is ordered during that period of time between the filing of the petition and the trial of the matter before the court. Its purpose is to provide funds with which to allow both parties to maintain the standard of living they enjoyed during the marriage pending final determination of the action. Its purpose is to provide funds with which to allow both parties to maintain the standard of living they enjoyed during the marriage pending final determination of the action. It is typically requested in the form of an order to show cause brought at the outset of a marital termination proceeding. It is typically requested in the form of an order to show cause brought at the outset of a marital termination proceeding.

12. 12 4. TEMPORARY SUPPORT Family Code section 3600 contains the statutory authority for the award of a temporary order of spousal support. Family Code section 3600 contains the statutory authority for the award of a temporary order of spousal support. That Code section specifically vests the superior court with the power to order the husband or wife to pay “any amount” necessary for the “support of the wife or husband....” That Code section specifically vests the superior court with the power to order the husband or wife to pay “any amount” necessary for the “support of the wife or husband....” Unlike a permanent award of spousal support or an award of child support, no change in circumstances is required to modify an award of temporary spousal support. Unlike a permanent award of spousal support or an award of child support, no change in circumstances is required to modify an award of temporary spousal support.

13. 13 5. PERMANENT SUPPORT A permanent or long-term award of spousal support is made up of four component parts: A permanent or long-term award of spousal support is made up of four component parts: 1) the amount of the award 1) the amount of the award 2) substantive stepdown 2) substantive stepdown 3) jurisdictional stepdown 3) jurisdictional stepdown 4) reservation of jurisdiction. 4) reservation of jurisdiction.

14. 14 5. PERMANENT SUPPORT a) Amount a) Amount Family Code section 4320 establishes ten factors that must be considered by the court in setting an award of long-term spousal support. Family Code section 4320 establishes ten factors that must be considered by the court in setting an award of long-term spousal support. The preface to the list of factors states that, “the amount of spousal support shall be based on the standard of living established during the marriage.” The preface to the list of factors states that, “the amount of spousal support shall be based on the standard of living established during the marriage.”

15. 15 5. PERMANENT SUPPORT b) Substantive Stepdown b) Substantive Stepdown An award contemplates that the substance of the award (that is, the amount being paid every month) will be reduced at periodic intervals down to zero with an ultimate retention of jurisdiction component. An award contemplates that the substance of the award (that is, the amount being paid every month) will be reduced at periodic intervals down to zero with an ultimate retention of jurisdiction component. See example on page 214. See example on page 214. This kind of award is only appropriate if the court can make specific factual findings that at the time of the initial award there are facts and evidence in the record that will support the prediction that the requirements for support of the supported spouse will justify a periodic lowering of the amounts as contemplated in the order. This kind of award is only appropriate if the court can make specific factual findings that at the time of the initial award there are facts and evidence in the record that will support the prediction that the requirements for support of the supported spouse will justify a periodic lowering of the amounts as contemplated in the order.

16. 16 5. PERMANENT SUPPORT c) Jurisdictional Stepdown c) Jurisdictional Stepdown In this context, the court is limiting its jurisdiction to award support above a certain level. In this context, the court is limiting its jurisdiction to award support above a certain level. See example on pages 215. See example on pages 215. This type of order is only appropriate in cases in which the court is able to make a specific factual finding that evidence exists to support the proposition that, over time, the supported spouse’s need for spousal support will in fact decrease to the level contemplated at each stepdown date. This type of order is only appropriate in cases in which the court is able to make a specific factual finding that evidence exists to support the proposition that, over time, the supported spouse’s need for spousal support will in fact decrease to the level contemplated at each stepdown date.

17. 17 5. PERMANENT SUPPORT d) Reservation of Jurisdiction d) Reservation of Jurisdiction This contemplates payment of spousal support for a period of time with a specific termination date as to the amount paid, but with no termination date as to the jurisdiction to modify spousal support should circumstances develop in the future. This contemplates payment of spousal support for a period of time with a specific termination date as to the amount paid, but with no termination date as to the jurisdiction to modify spousal support should circumstances develop in the future. See example on page 216. See example on page 216. A Richmond order is an award of spousal support that contemplates termination on a specific date in the future unless the supported spouse successfully brings a motion to continue support before the termination date. A Richmond order is an award of spousal support that contemplates termination on a specific date in the future unless the supported spouse successfully brings a motion to continue support before the termination date.

18. 18 5. PERMANENT SUPPORT e) The Lengthy Marriage e) The Lengthy Marriage Family Code section 4336 provides that: “For the purpose of retaining jurisdiction, there is a presumption affecting the burden of producing evidence, that a marriage of 10 years or more, from the date of marriage to the date of separation, is a marriage of long duration.” Family Code section 4336 provides that: “For the purpose of retaining jurisdiction, there is a presumption affecting the burden of producing evidence, that a marriage of 10 years or more, from the date of marriage to the date of 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 than ten years in duration have been lengthy, and other cases have found that marriages over ten years have failed to be lengthy. Indeed, cases have held that marriages shorter than ten years in duration have been lengthy, and other cases have found that marriages over ten years have failed to be lengthy.

19. 19 5. PERMANENT SUPPORT The ultimate determination and finding on the issue of whether or not this is a marriage of “long duration” rests within the sound discretion of the trial court and is fundamentally a factual determination. The ultimate determination and finding on the issue of whether or not this is a marriage of “long duration” rests within the sound discretion of the trial court and is fundamentally a factual determination. For purposes of calculating the length of the marriage, the period of time that the parties may have cohabited on a nonmarital basis is not included. For purposes of calculating the length of the marriage, the period of time that the parties may have cohabited on a nonmarital basis is not included.

20. 20 6. SELECTED ISSUES REGARDING SUPPORT Spousal support is designed to provide an equitable balance between the parties and some sort of equanimity in their reasonable expectations. Spousal support is designed to provide an equitable balance between the parties and some sort of equanimity in their reasonable expectations. This can, and very often does, extend beyond the mere concept of payment of a specific dollar amount per month. This can, and very often does, extend beyond the mere concept of payment of a specific dollar amount per month.

21. 21 6. SELECTED ISSUES REGARDING SUPPORT a) Cohabitation a) Cohabitation Family Code section 4323 establishes a rebuttable presumption of decreased need on the part of the supported spouse if that person is cohabitating with a person of the opposite sex. Family Code section 4323 establishes a rebuttable presumption of decreased need on the part of the supported spouse if that person is cohabitating with a person of the opposite sex. The effect of this code section is to place the burden on the supported spouse of demonstrating to the court that her needs have not in fact decreased by virtue of the nonmarital relationship, ostensibly providing an effective defense to a supporting spouse’s request to reduce amounts being paid. The effect of this code section is to place the burden on the supported spouse of demonstrating to the court that her needs have not in fact decreased by virtue of the nonmarital relationship, ostensibly providing an effective defense to a supporting spouse’s request to reduce amounts being paid.

22. 22 6. SELECTED ISSUES REGARDING SUPPORT b) Health Insurance b) Health Insurance Various sections of California law provide that all group disability insurance and health insurance offered in California must give the insured the right to convert his or her policy from a group policy to an individual policy without requiring further evidence of insurability. Various sections of California law provide that all group disability insurance and health insurance offered in California must give the insured the right to convert his or her policy from a group policy to an individual policy without requiring further evidence of insurability. Additionally, the Consolidated Omnibus Reconciliation Act of 1985 (COBRA) provides the ability of a nonemployee to continue to participate in the employer’s group health insurance plan for a period of up to three years following a change in status from employee to nonemployee or from a termination of status as the employee’s dependent. Additionally, the Consolidated Omnibus Reconciliation Act of 1985 (COBRA) provides the ability of a nonemployee to continue to participate in the employer’s group health insurance plan for a period of up to three years following a change in status from employee to nonemployee or from a termination of status as the employee’s dependent.

23. 23 6. SELECTED ISSUES REGARDING SUPPORT c) Security for Payment of Spousal Support c) Security for Payment of Spousal Support Unless otherwise agreed by the parties, a spousal support order will typically terminate at the death of either party. Unless otherwise agreed by the parties, a spousal support order will typically terminate at the death of either party. Family Code section 4360 is designed to address this situation. Family Code section 4360 is designed to address this situation. That section provides, in pertinent part, that: see page 221. That section provides, in pertinent part, that: see page 221.

24. 24 6. SELECTED ISSUES REGARDING SUPPORT Such an order most likely will be granted in situations where age, infirmity, and employability of the supported spouse make it highly likely that he will never be able to become fully self-supporting following the dissolution and will therefore continue to require support long after the supporting spouse has died. Such an order most likely will be granted in situations where age, infirmity, and employability of the supported spouse make it highly likely that he will never be able to become fully self-supporting following the dissolution and will therefore continue to require support long after the supporting spouse has died. Typical security devices would include a lien on the supporting spouse’s property, a bond, the appointment of a receiver, or even a wage assignment for payment. Typical security devices would include a lien on the supporting spouse’s property, a bond, the appointment of a receiver, or even a wage assignment for payment. California law now provides for a mandatory issuance of a wage assignment to secure spousal support orders. California law now provides for a mandatory issuance of a wage assignment to secure spousal support orders.

25. 25 B. MODIFICATION OF SPOUSAL SUPPORT As is the case with child support, the party requesting modification of spousal support must demonstrate to the court’s satisfaction that some change in circumstances has occurred subsequent to the entry of the prior order. As is the case with child support, the party requesting modification of spousal support must demonstrate to the court’s satisfaction that some change in circumstances has occurred subsequent to the entry of the prior order. This could be demonstrated by the supported spouse’s failure to become self-supporting, the unexpected failure of the court’s expectations with regard to its earlier orders, or a significant change in the financial situation of either the supported or supporting spouse. This could be demonstrated by the supported spouse’s failure to become self-supporting, the unexpected failure of the court’s expectations with regard to its earlier orders, or a significant change in the financial situation of either the supported or supporting spouse.

26. 26 B. MODIFICATION OF SPOUSAL SUPPORT An order for spousal support will not be modified or terminated to the extent an agreement, either written or oral (entered into in open court between the parties), specifically provides that the spousal support order is not subject to modification or termination. An order for spousal support will not be modified or terminated to the extent an agreement, either written or oral (entered into in open court between the parties), specifically provides that the spousal support order is not subject to modification or termination.