The award of spousal support or alimony from one party to another is the court’s way of balancing the incomes of the parties consistent with their lifestyle during the marriage. There are many reasons why it might be necessary to change a spousal support order. Sometimes the person paying the support has had a substantial reduction in their income and can no longer pay the amount ordered. Sometimes the person receiving the support no longer needs it.  Sometimes the person receiving spousal support has remarried. The issue of modifying or terminating spousal support is complex but we will try to discuss some of the key points that are evaluated by the courts in this process.

The Ability to Modify Spousal Support California Orders

California Family Code Section 3603, 3651(c) and 4333 provide that temporary as well as permanent Spousal Support awards and agreements can be modified during the period support is schedule to be paid except if the parties have signed a written stipulation and agreed otherwise.

Unlike child support jurisdiction, the court’s jurisdiction over the issue of spousal support California orders can be terminated by court order. If the parties want the court to be able to continue to have ongoing jurisdiction over the issue of spousal support, the Judgment should include that jurisdiction of this issue is being “reserved to the court.” This does not apply to long marriages, typically marriages 10 years or longer. In long-term marriages, unless otherwise specified in a written agreement or order, it is implied that the court shall retain jurisdiction “indefinitely” over the issue of spousal support and be able to modify a spousal support order (increase, decrease or terminate) at any time in the future. This includes the court’s ability to terminate support, in the court’s discretion, upon showing changed circumstances of the parties.

Spousal Support Orders That Are Not Modifiable

Orders by Agreement to Be Nonmodifiable: California Family Code Section 3651(d) allows parties to voluntarily make a spousal support order non-modifiable by executing a written agreement which specifically provides that the spousal support being agreed to cannot be terminated or modified. This type of agreement can also be orally agreed to in open court.

Orders of Specified and Fixed Duration: Often parties will agree to spousal support over a period of fixed duration. Once the spousal support period expires based upon a definitive termination date or terminating event, the court no longer has jurisdiction to extend support unless the previous order specifically gave the court further jurisdiction. A specified termination date in a spousal support order, however, does not terminate the court’s ability to extend support past the termination date if the previous order did not otherwise explicitly prevent the order from being modified.

Modifiability of Spousal Support Agreements

California Family Code Section 3590-3593 governs the court’s authority to modify spousal support agreements. There are some key points to understand should you want to modify a spousal support order.

1) Spousal support can be modified but such modification would not apply to amounts that accrued or became due prior to the date of filing the motion to terminate or modify.

2) If the parties previously agreed either by written agreement or oral testimony in court, that the spousal support order may not be modified or revoked, the court cannot modify the order.

3) A California court has no ability to modify an out-of-state sister state spousal support order as long as the other state has exclusive jurisdiction over the order under it’s state’s laws. Conversely, no other state may modify a California spousal support order as long as California has continued jurisdiction over the current order.

Basis For Support Modification – Material Change In Circumstances

If the court has jurisdiction over the issue of spousal support, an existing spousal support order can only be modified by the court if the party seeking the modification can show a material change of circumstances since the last order. However, while proving a change of circumstances is required to modify a spousal support order, the court is not required to terminate or modify an existing spousal support order merely because one party has proven some change. There must be a substantial, material change.

If a reduction in the obligor’s income is the basis for the spousal support modification request, the court has discretion to determine whether or not the reduction in income was under the obligor’s control. A party cannot deliberately reduce their income and then seek a reduction of spousal support. If a court believes that the obligator could have prevented the income reduction, the court may, in it’s discretion, deny the modification request.

Factors Considered When Determining Change In Circumstances For Spousal Support Modification

When a court is requested to consider the modification of an existing spousal support order, there are several factors outlined in California Family Code Section 4320 they must take into consideration. Those factors are:

1. Both parties ability to maintain the marital standard of living in light of their individual earning capacities.

2. The extent to which the supported spouse contributed to the other spouse’s earning ability through costs of education, training, career position or license during the marriage.

3. The supporting spouse’s ability to pay spousal support taking into account their earning capacity, assets, standard of living and earned and unearned income. This means that a spousal support order must be based upon the supporting spouse’s ability to pay, based on their present circumstances (not past or future) at the time of the support hearing, and current income, cash flow and earning ability.

4. The needs of each party based on their standard of living during marriage. The word “needs” means more than “bare necessities of life” but more specifically references the parties station in life during marriage and before separation.

5. The parties assets and debt. A spouse’s separate estate, including assets allocated to them during the divorce proceedings, and potential income these assets may generate, would be considered by a court to reduce or terminate a previously awarded spousal support order.

6. Duration of marriage. The length of the marriage of the parties directly affects the “need” for support and the amount and duration of spousal support. If a spouse has been out of the job market on account of the marriage, this fact would give the court more reason to grant spousal support. If the parties were married a relatively short period of time, the court will consider the totality of the circumstances which may justify a lower amount of spousal support and/or a shorter support term.

7. Employability of custodial spouse vs. impact on children. The court will compare the ability of the supported spouse to seek and engage in gainful employment to the impact such employment might have interfering with the interests of children in that parent’s custody. This means that the needs of young children may theoretically justify indefinite spousal support to a custodial parent even if the parties were married a relatively short time.

8. Age and health of the parties. After considering all of the § 4320 factors as they pertain to an award of spousal support, a party’s age and health may justify the continuation or termination of an existing spousal support order. Age and health considerations are also strongly relevant to the duration of a spousal support order.

9. History of domestic violence. Documented evidence of previous domestic violence between the parties is also considered by the court when awarding spousal support.

10. Tax consequences. Spousal support is a tax deduction for the payor and considered taxable income to the payee. The court will consider factors such as who pays the taxes, who gets the deduction, and what effect this will have on the overall net income of each party.

11. Relative hardships. The court will consider the balance of hardships to each party. This would appear to underscore the court’s obligation in considering all the § 4320 circumstances when determining the duration and appropriate amount of spousal support.

12. Goal to be self-supporting.  It is the court’s intent that the supported party be self-supporting within a reasonable period of time. “Reasonable period of time” is typically considered to be one-half of the length of the marriage, except in marriage of long duration (10 years of more).

13. Spousal abuse conviction (mandatory factor for support reduction/termination). California Family Code provides that the criminal conviction of an abusive spouse is a mandatory consideration to reduce or terminate spousal support.

14. Other “just and equitable” factors.” The court can consider any other factors they believe just and equitable when awarding, modifying or terminating spousal support.

Burden Of Proof In Motion For An Increase In Spousal Support

In order for the court to consider an increase in spousal support, the moving party must prove to the court that either (1) when the prior order was made, it was not enough to meet his or her reasonable needs at that time under the factors outlined in California Family Code Section 4320 or (2) the reasonable cost of meeting those needs has increased. Once this has been established, the party seeking an increase in spousal support must then prove that the obligor has the ability to pay increased support.

Burden Of Proof For Lowering Spousal Support

When lowering or terminating an existing spousal support order, the court must consider and weigh the appropriate spousal support factors outlined in Family Code Section 4320. Although the passage of time since the start of the spousal support order is considered by the court when a party is seeking to lower or terminate an existing order, the mere passage of time is not, by itself, a sufficient basis for modifying an existing spousal support order. The party seeking to reduce of terminate an existing support order must show a change in circumstances such as a job change, income change, change in health, age, etc. California courts, however, have made passage of time the basis for support modification or termination when it is consistent with the statutory goal that a supported spouse become self-supporting within a “reasonable period of time.” Other than in long-term marriages, this is generally one-half the length of the marriage.

Separate Estate of Supported Party Considered

California Family Code Section 4322 provides that if a supported party has no minor children and has acquired a separate estate that includes employment income sufficient for their proper support, a court must grant a motion to terminate spousal support. When determining proper support, the court can consider all income produced from the separate estate as well as the reasonable income expected to be produced.

If a supported spouse has dissipated their separate estate that would have otherwise been sufficient to allow them to be self-supported, the court can still terminate spousal support. A supported spouse will not be rewarded for their mishandling and mismanagement of their separate estate in this situation.

Supported Spouse’s Domestic Violence Conviction May Affect Spousal Support Order

Although it has no bearing on the financial circumstances of the parties, a criminal conviction of a spouse is considered by the court when making a reduction or terminating spousal support. There is a rebuttable presumption in Family Code Section 4325 wherein a spousal support award should not be made to an abusive spouse.

Automatic Alimony Termination Upon Remarriage

Unless the parties have agreed in writing to the contrary, when a supported spouse remarries, a spousal support order automatically terminates.
Cohabitation With Person Of The Opposite Sex: Unless the parties have agreed in writing to the contrary, if a supported party cohabitates with a person of the opposite sex, there is a rebuttable presumption that decreases the burden of proof regarding the need for spousal support. There must be a showing of a homemaker-companion, romantic relationship between the supported spouse and the person they are living with, not just a simple roommate or boarding arrangement. Income derived from the renting of a room, however, may be considered in reducing support.

Supporting Spouse’s Retirement May Trigger Reduction or Termination of Support

If the supporting party retires or stops working, this change of circumstances may be a sufficient to decrease or terminate support obligation. A person who has reached 65, the normal retirement age, cannot be mandated to continue working just to pay spousal support at the current level. In addition, when a person retires at a normal retirement age, they cannot be required to invade the principal of their investments to continue paying spousal support. Only the income generated from their investments may be considered.  If, however, a supporting spouse elects to retire early but still has ability and the opportunity to work, a court may decline a request to reduce or terminate spousal support.

Temporary Reduction In Supporting Spouse’s Income

Sometimes a change in circumstances in only temporary. For example, if a support payor loses his job and temporarily experiences a drop in income until they get a new job. the court may order that support payments be temporarily decreased.

Bankruptcy Discharges: If a supporting spouse is required to satisfy community debt that was discharge in bankruptcy by a party receiving spousal support, the court may consider this as a change in the parties economic positions which would call for a reduction or termination of spousal support. However, if the supported spouse or both parties obtain a bankruptcy discharge of debt, it may be proper to actually increase, and/or extend the duration of spousal support.

How to Modify Spousal Support California Orders

When a party wants to modify a spousal support order, they must file a Request for Order in the court case where the original order or judgment was rendered.  Both parties must provide current financial information for the court’s consideration.  The party seeking the modification must personally serve the Request for Order on the other party consistent with California Code of Civil Procedures Section 1005(b), which is usually at least 16 court days prior to the scheduled hearing. If a case is still “open” meaning a final Judgment has not yet been entered, the party can be served by mail, but additional time for “mailing” must be allowed for.  At the hearing, both parties must be prepared to present their case. It is best that the papers submitted for filing contain comprehensive declarations supporting their position and factual basis because the allowance of testimonial evidence at the actual hearing for modification of a spousal support order generally lies solely within the court’s discretion.

A People’s Choice has provided legal document preparation services in California for 35 years. Our experienced staff can help you prepare all the necessary documents to bring your request for a spousal support order modification before the court. If you have other questions or would like to contact our office regarding your particular situation, don’t hesitate to call our office at 800-747-2780.

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