Westlake Village Spousal Support Attorney
Understanding the Need for Temporary Spousal Support
In many divorce cases, one spouse or domestic partner was dependent on the other for financial support while married and may therefore face financial stress upon divorce. . Temporary spousal support is awarded under Fam. Code §3600 based on the supported spouse’s needs and the other spouse’s ability to pay.
"The terms 'interim,' 'pendente lite' and 'temporary' are used interchangeably in describing temporary support orders.
The Court in In re Marriage of Tong & Samson (2011) 197 Cal.App.4th 23, 127 Cal.Rptr.3d 857, further explained, “Whereas permanent spousal support 'provide[s] financial assistance, if appropriate, as determined by the financial circumstances of the parties after their dissolution and the division of their community property,' temporary spousal support 'is utilized to maintain the living conditions and standards of the parties in as close to the status quo position as possible pending trial and the division of their assets and obligations.' [Citations.]" [Citation.] The court is not restricted by any set of statutory guidelines in fixing a temporary spousal support amount. [Citation.]'"
More than one appellate court has said that if the supported spouse did well on the amount of temporary spousal support award, that it is not an abuse of discretion for the trial court to continue the same amount in the permanent spousal support award. In the case of In re Marriage of Roesch (1978) 83 Cal.App.3d 96, 147 Cal.Rptr. 586, the husband earned $225,000/year, which is $18,750 per month, not including bonuses husband received. For the temporary spousal support order, which is the spousal support order until later replaced by the permanent spousal support order, wife was awarded only $2,500/month. The temporary spousal support order was affirmed in part because the wife was frugal and had been able to save $665/mo on the smaller temporary support award. This is an example where the wife, as the supported spouse, would seem to have been penalized by the trial judge because she was able to cut back her standard of living to try to live on an inadequate temporary support award. Since the temporary spousal support award sets the tone for the case and, despite all judicial pronouncements to the contrary, since it has a profound influence on what the final support award is likely to be, great care and preparation should go into the temporary support hearing.
The appellate court in In re Marriage of Dick (1993) 15 Cal.App.4th 144, held that the trial court has broad discretion to determine the amount of temporary spousal support, considering both the supported spouse’s need for support and the supporting spouse’s ability to pay].Although changed circumstances is generally required to modify a temporary spousal support order, the rule is not inflexible; when a factor has not been previously litigated, that factor may be considered later. Case law is not consistent on whether changed circumstances are required to modify temporary support orders. “One rationale for applying the changed circumstances rule to temporary spousal support orders is that such orders ‘share the “finality” attribute of a spousal support judgment in that they are immediately appealable as “collateral final orders.”'" (Id. at p. 1069.) See In re Marriage of Freitas (2012) 209 Cal.App.4th 1059, 147 Cal.Rptr.3d 453.
In order to obtain fair spousal support or to avoid being ordered to pay too much, it is vital to retain a spousal support lawyer in Westlake Village who knows your rights and has the experience and skill to fight for a fair court order. Richard Ross Associates can help!
HOW DOES PERMANENT SPOUSAL SUPPORT DIFFER FROM A TEMPORARY SPOUSAL SUPPORT?
A trial court should not base a permanent spousal support award on the temporary spousal support guidelines; the purpose of temporary support order is to maintain the parties in status quo pending the outcome of the divorce controversy.
Permanent spousal support is sometimes referred to as “judgment spousal support” or “long-term spousal support”. Permanent spousal support is not always permanent, although in some cases it might be permanent.
"The purpose of permanent spousal support is not to preserve the pre-separation status quo, as in temporary spousal support, but to provide financial assistance, if appropriate, as determined by the financial circumstances of the parties after their dissolution and the division of their community property." Stated another way, temporary spousal support looks forward at the beginning of the case, while permanent spousal support looks backward at the end of the case, at the time of trial or settlement.
"[T]he purposes of pendente lite allowances to a wife or former wife are to maintain her in her accustomed manner of living pending the outcome of the action and to enable her to present her side of the controversy fully. On the other hand, the object of permanent allowances is to make an equitable apportionment between the parties." (Id. at p. 146.)
"An award of temporary spousal support '"is utilized to maintain the living conditions and standards of the parties in as close to the status quo position as possible pending trial and the division of their assets and obligations."'"
While the trial court looks at the needs of the receiving spouse and the ability to pay of the paying spouse in a temporary spousal support order, the Court looks to the several factors in Family Code Section 4320 in making a permanent support order.
WHAT ARE THE FAMILY CODE SECTION 4320 FACTORS THAT A TRIAL COURT LOOKS AT AND CONSIDERS IN MAKING A PERMANENT SPOUSAL SUPPORT ORDER?
In ordering spousal support under this part, the court shall consider all of the following circumstances:
(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
(1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.
(2) The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
(b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.
(c) The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.
(d) The needs of each party based on the standard of living established during the marriage.
(e) The obligations and assets, including the separate property, of each party.
(f) The duration of the marriage.
(g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
(h) The age and health of the parties.
(i) All documented evidence of any history of domestic violence, as defined in Section 6211, between the parties or perpetrated by either party against either party’s child, including, but not limited to, consideration of:
(1) A plea of nolo contendere.
(2) Emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party.
(3) Any history of violence against the supporting party by the supported party.
(4) Issuance of a protective order after a hearing pursuant to Section 6340.
(5) A finding by a court during the pendency of a divorce, separation, or child custody proceeding, or other proceeding under Division 10 (commencing with Section 6200), that the spouse has committed domestic violence.
(j) The immediate and specific tax consequences to each party.
(k) The balance of the hardships to each party.
(l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a “reasonable period of time” for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.
Note that a supported spouse must be put on notice of his or her obligation to become self-supporting before failure to do so can justify termination in a subsequent motion to modify spousal support.
(m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4324.5 or 4325.
(n) Any other factors the court determines are just and equitable. (Am Stats 2018, C938)
SPOUSAL SUPPORT IS GENDER NEUTRAL
Spousal support is gender neutral. The higher wage earner could be the wife or husband. The lower wage earner could be the wife or husband. Generally, the higher wage earner will pay spousal support to the lower wage earner, regardless of gender.
DURATION OF SPOUSAL SUPPORT
The Court has indefinite jurisdiction over a long marriage.
Family Code §4336 provides:
(a) Except on written agreement of the parties to the contrary or a court order terminating spousal support, the court retains jurisdiction indefinitely in a proceeding for dissolution of marriage or for legal separation of the parties where the marriage is of long duration.
(b) 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. However, the court may consider periods of separation during the marriage in determining whether the marriage is in fact of long duration. Nothing in this subdivision precludes a court from determining that a marriage of less than 10 years is a marriage of long duration.
(c) Nothing in this section limits the court's discretion to terminate spousal support in later proceedings on a showing of changed circumstances.
The burden of proof to establish that his or her marriage should be treated as one of "long duration" is now clearly on the supported spouse hoping to obtain indefinite spousal support.
Note: "[N]othing in [Fam. Code §4336] limits the court's discretion 'to terminate spousal support in later proceedings on a showing of changed circumstances.'" (In re Marriage of Christie (1994) 28 Cal.App.4th 849, 34 Cal.Rptr.2d 135.)
DETERMINING THE LENGTH OF SPOUSAL SUPPORT IN A “SHORT MARRIAGE”
Fam. Code §4320 (l) provides, in part: “The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in [Fam. Code §4336], a ‘reasonable period of time’ for purposes of this section generally shall be one-half the length of the marriage.”
Thus, for the purposes of calculating half the length of the marriage for Fam. Code §4320 (l) purposes, the proper measure is date of marriage to date of separation.
Does the payment of temporary spousal support counts towards the “half of the length of the marriage” guideline? The answer is that No published opinion speaks directly to this issue, except to say that it is a factor within the trial court’s discretion
WHAT IS NEEDED TO MODIFY AN EXISTING PERMANENT SPOUSAL SUPPORT ORDER?
In re Marriage of Smith (1990) 225 Cal.App.3d 469, 274 Cal.Rptr. 911, the appellate court held, "[T]he finding as to what was the parties' marital standard of living is not the most critical issue upon a later motion for upward modification. What is more important is whether the trial court in initially ordering 'permanent' spousal support, or upon prior modification, made a finding that the amount ordered was or was not sufficient to meet the reasonable needs of the supported spouse, considering the marital standard of living of the parties and the other factors contained in [former Civil Code section 4801 (a), replaced in part by Fam. Code §4320]." (Id. at p. 491.)
When permanent spousal support is considered by the trial court, the court must consider all of the factors specified in Family Code Section 4320. But, at that initial stage the marital standard of living is often given more weight than other factors.
But, post-judgment, when a permanent spousal support order is reviewed and modification is considered, the marital standard of living factor become less important and the “reasonable needs” of the supported party become more important. Nevertheless, the court considering a modification of spousal support must again look at and consider all of the same Family Code Section 4320 factors the trial court looked at and considered when arriving at the initial permanent spousal support amount.
"[A] trial court, while possessing broad discretion to modify spousal support, cannot do so in the absence of a ••material•• change of circumstances occurring subsequent to the last prior order. However, the parties may agree that a specific event will not be a change of circumstances. This agreement would have to be stated in the underlying initial permanent spousal support order.
Changed circumstances are measured from last spousal support order, not the original judgment. Where there are earlier proceedings seeking modification of spousal support, there must be a material change of circumstances "subsequent to the last prior order."
DOES COHABITATION BY THE SPOUSE RECEIVING SPOUSAL SUPPORT HAVE ANY EFFECT ON THAT SPOUSE’S RIGHT TO RECEIVE CONTINUED SPOUSAL SUPPORT? PRESUMPTION OF DECREASED NEED.
Family Code §4323 (a)(1) states, “Except as otherwise agreed to by the parties in writing, there is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabiting with a nonmarital partner. Upon a determination that circumstances have changed, the court may modify or terminate the spousal support as provided for in Chapter 6 (commencing with Section 3650) of Part 1.” (2) Holding oneself out to be the spouse of the person with whom one is cohabiting is not necessary to constitute cohabitation as the term is used in this subdivision.
DEATH OR REMARRIAGE ON RIGHT TO RECEIVE SPOUSAL SUPPORT
Family Code §4337 states, “Except as otherwise agreed by the parties in writing, the obligation of a party under an order for the support of the other party terminates upon the death of either party or the remarriage of the other party. (Ad Stats 1992, C 162)”
If your circumstances have changed, such as when you have lost a job, gained a job, or have become incarcerated, it is important that you act quickly to change the terms of your agreement. Not paying support is not an option and can lead to serious penalties. Instead, a modification can ensure you are paying or receiving the proper amount for your unique circumstances.
VERY IMPORTANT – A spousal support order is a court order. The same applies to child support order. Every month, pursuant to the court order, another support installment become due. Each installment constitutes a judgment. If unpaid, that monthly judgment accrues interest at the legal rate of 10% per annum. DO NOT ENTER INTO ANY AGREMENT WITH YOUR FORMER SP0USE TO CHANGE THE TERMS OF AN EXISTING SPOUSAL SUPPORT OR CHILD SUPPORT ORDER. It will have no effect. You will still be held liable to pay the entire court ordered support plus legal interest. Your excuse that your former spouse agreed to modify it is not enforceable. YOU MUST FILE AN ORDER TO SHOW CAUSE WITH THE TRIAL COURT FOR A MODIFICATION OF THAT ORDER FOR IT TO BE EFFECTIVE. SEE an attorney at RICHARD ROSS ASSOCIATES to prepare a proper Stipulation and Order to Modify the existing support order. That stipulation and order would then be signed by you and your former spouse. That Stipulation and Order will then be presented to the judge, who will sign the Stipulation and Order, thereby changing the Court’s existing order. ONLY THEN WLL YOU BE PROTECTED.
Why You Need an Alimony aka spousal support Lawyer in Westlake Village
If you are looking to get a divorce, it is vital that you retain a spousal support attorney in Westlake Village and Thousand Oaks right away to ensure that a fair spousal support order is granted. You will need the aggressive and persuasive representation of an experience attorney in order to do so. You could also draft a spousal support agreement outside of the courtroom without litigation through collaborative law. Consult with an attorney from Richard Ross Associates today for the counsel and guidance you need. Attorney Ross has over 40 years of legal experience and is a California Certified Family Law Specialist. Contact our firm today!
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This is very important: If you have separated from your spouse before one of you has filed for dissolution of marriage or legal separation, avoid agreeing to and placing into effect a temporary parenting plan arrangement regarding the children unless you will be able to live with this arrangement after the divorce papers have been filed. Once you begin a parenting plan that seems to be working, it becomes the "status quo." It is very difficult to convince a mediator or judge to change the status quo, especially if it is working or appears to be working and is not detrimental to the minor children.
If you have not received a judgment dissolving your marriage before the end of the year, you may file an individual tax return under the status of "married, filing separately" or a joint tax return with your spouse. You should consult your accountant as to the advantages of these options. You may obtain special information booklets regarding tax information for divorce or separated individuals from your local IRS office or read the IRS booklet online.
To file an action for divorce, also known as dissolution of marriage, a person must have resided in the state of California for six months and in the county where the action is filed for three months prior to filing the petition in court. This is true of either the petitioner or the respondent - either person can meet the test and allow a filing. If your spouse meets the residency requirement, you can file even if you do not meet it yourself.
The court can and usually will order you to move out of your residence if your spouse convinces the court that you have been violent toward your spouse or threatened your spouse. You could be given ex-parte notice to be in court the next day because your spouse is seeking an order to make you move out and stay out. You can be ordered to leave immediately and not return even if your spouse is not on the property title or lease agreement! Once you are ordered to leave, it is not likely that you will be allowed to return.
Before you get a divorce, photocopy all relevant financial documents that you can obtain and store them off-site with a trusted friend or relative. Do not store them in the trunk of your car where they can easily be found and removed by your spouse. There may be both personal and strategic reasons not to tip off your spouse that documents are being reviewed for a possible dissolution proceeding. Make copies of documents that you find in the residence and return the original documents to their original location as soon as possible so that your spouse won't notice that they are missing. It is often advisable to make the photocopies when you are sure your spouse is away for an extended time, such as during a workday. It is advisable to gather as many relevant financial documents as possible while they are still available and before they have been removed or destroyed by your spouse. This will significantly reduce the cost of divorce litigation if the documents do not have to be recovered later. It will also permit us to get a true picture of all community assets and debts as soon as possible.