The award of spousal support or alimony after divorce is the court’s way of balancing the parties’ incomes consistent with their lifestyle during the marriage. However, some factors may require a change in a spousal support order. For example, sometimes the person paying support has a substantial reduction in income and can no longer pay the amount ordered. On the other hand, there are also cases in which the person receiving the support no longer needs it. Regardless, there are always legal requirements for modifying spousal support orders in California.
The Ability to Modify Spousal Support California Orders
California Family Code Sections 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 scheduled to be paid except if the parties have signed a written stipulation and agreed otherwise.
Unlike child support, a court order can terminate a previous jurisdiction over spousal support in California. Therefore, if parties want the court to have ongoing jurisdiction over spousal support following the order, the judgment should include that jurisdiction of the issue is being “reserved to the court”.
However, note that this does not apply to long marriages of ten years or longer. In long term marriages, unless otherwise specified in a written agreement or order, the court automatically retains jurisdiction “indefinitely” over the issue of spousal support. In other words, the court can modify a spousal support order at any time in the future. This power includes the court’s ability to terminate support upon changed circumstances.
Modifiability of Spousal Support Agreements
California Family Code Section 3590-3593 governs the court’s authority to modify spousal support agreements. Below are some key points to understand from the text:
1) Spousal support modification does 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 spousal support order as long as the other state has exclusive jurisdiction over the order under its 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.
When Spousal Support Orders Are NOT Modifiable
Orders by Agreement to be Non-Modifiable
California Family Code Section 3651(d) allows parties to voluntarily make a spousal support order non-modifiable by executing a written or oral agreement in open court. This agreement should specifically provide that the spousal support cannot be terminated or modified.
Orders of Specified and Fixed Duration
Often, parties will agree to spousal support over a fixed period. In these cases, after the defined period expires, the court no longer has jurisdiction to extend support. That said, a specified termination date in a spousal support order does not terminate the court’s ability to extend support past the termination date if the previous order did not otherwise explicitly prevent modification.
Basis For Spousal Support Modification in California
If the court has jurisdiction over spousal support, they may modify it only if the party seeking modification can demonstrate a material change in personal circumstances since the last order. That said, the court is not required to terminate or modify an existing order merely because one party has proven change. Instead, there must be a substantial, material change.
Note that sometimes a change in circumstances is only temporary. For example, a support payor who loses his job may temporarily experience a decrease in income. Therefore, the court may order that support payments temporarily decrease until the payor finds a new job.
Factors Considered When Determining Changes in Circumstances
California Family Code Section 4320 outlines several factors the court must take into consideration when potentially modifying an existing spousal support order. Those factors include:
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. This calculation takes into account earning capacity, assets, standard of living, and earned and unearned income. In other words, the court must base spousal support orders on the supporting spouse’s present circumstances (not past or future). These circumstances include current income, cash flow, and earning ability;
4. Each party’s needs based on their standard of living during marriage. The word “needs” means more than “bare necessities of life”. More specifically, it 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, are considered when reducing or terminating a previously awarded spousal support order;
6. Duration of marriage. The length of the marriage directly affects the “need” for support and the amount and duration of spousal support. For example, if a spouse has been out of a job due to marriage, the court may grant spousal support. Further, if the parties were married a relatively short time, the court will consider the totality of the circumstances. This 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 supported spouse’s ability to seek and engage in gainful employment to the impact such employment might have on the interests of children in that parent’s custody. Therefore, the needs of young children may theoretically justify indefinite spousal support to a custodial parent. In fact, this holds true even if the parties were married a relatively short time;
8. Age and health of the parties. After considering all of the § 4320 factors, a party’s age and health may justify the continuation, termination, or duration of a spousal support order;
9. History of domestic violence;
10. Tax consequences. Spousal support is a tax deduction for the payor and taxable income for the payee. Therefore, the court will consider 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 of each party;
12. The supported party’s intent to be self-supporting within a reasonable period of time. Typically, a “reasonable period” is one half the length of the marriage, except in marriages of 10 or more years;
13. Spousal abuse conviction. There is a rebuttable presumption in Family Code Section 4325 wherein the court should not award spousal support to an abusive spouse; and
14. Other “just and equitable” factors.
Burden of Proof When Modifying Spousal Support
Increase in Support
For the court to consider an increase in spousal support, the moving party must prove that either:
(1) the prior order was not enough to meet their 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 the party demonstrates either of these claims, they must prove that the obligor has the ability to pay increased support.
Decrease in Support
When decreasing or terminating an existing spousal support order, the court must consider and weigh the appropriate spousal support factors outlined in Family Code Section 4320. However, the passage of time is not, by itself, a sufficient basis for modifying an existing spousal support order. Therefore, the party seeking to reduce or terminate an order must show a change in circumstances. This may include a job, income, health, or age change, for example. That said, California courts have made passage of time the basis for support modification or termination when it is consistent with the statutory goal that a spouse become self-supporting within a “reasonable period of time”.
If a reduction in the obligor’s income is the basis for the spousal support modification request, the court has discretion to determine whether the reduction in income was under the obligor’s control. In other words, a party cannot deliberately reduce their income and then seek a reduction of spousal support. If a court believes that the obligor could have prevented the income reduction, they may deny the modification request.
Other Considerations for Modification of Spousal Support Orders in California
Separate Estate of Supported Party
California Family Code Section 4322 provides that if a supported party has no minor children and has acquired a separate estate that includes sufficient income, the court must grant a motion to terminate spousal support. Further, if a supported spouse has dissipated their separate estate that would have otherwise provided sufficient support, the court can still terminate the order. In other words, the court will not reward a supported spouse for their mishandling or mismanagement of their separate estate.
Unless the parties have agreed in writing to the contrary, when a supported spouse remarries, a spousal support order automatically terminates. Likewise, if a supported party cohabitates with a romantic companion, a rebuttable presumption decreases the burden of proof regarding the need for spousal support. However, this is not the case for a mere roommate or boarding arrangement. That said, the court may consider income derived from renting a room in reducing support.
If the supporting party retires or stops working, this change of circumstances may be sufficient to decrease or terminate support. For example, the court cannot mandate a 65-year-old to continue working just to pay spousal support at the previous level. Likewise, they cannot require them to invade the principal of their investments to continue paying spousal support. Instead, the court will only consider income generated from investments. However, if a supporting spouse retires early but still has the ability and opportunity to work, the court may decline a request to reduce or terminate spousal support.
If a supporting spouse is required to satisfy community debt that was discharged in bankruptcy by the other party, the court may consider this as a change in the parties’ economic positions. This 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. Note that they must file the order with the same court that rendered the original order or judgment. Then, 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). If a case is still “open” without a final judgment, the party can be served by mail with additional time. Typically, service must occur at least 16 court days prior to the scheduled hearing.
Before the hearing, both parties must provide current financial information for the court’s consideration. Then, at the hearing, both parties must present their case. Papers the parties submit for filing should contain comprehensive declarations supporting their position. Further, these declarations should be on a factual basis. Generally, allowing testimonial evidence at the actual hearing lies solely within the court’s discretion.
If you are considering modifying or terminating spousal support, contact A People’s Choice! A People’s Choice has provided legal document preparation services in California for over 40 years. Our experienced staff can help you prepare all the necessary documents to bring your request 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.