Parties in a marital dissolution often regard the issue of spousal support on par with that of child support. From a legal perspective, however, these two kinds of financial obligations are quite different. Child support is required to be paid according to a state wide formula if one party asks for it, and no party can be prevented from making such a request. Long Term or Post-Judgment spousal support, on the other hand, is not allowed to be set by a formula and so, parties typically engage in extensive negotiations to determine support arrangements. Should these negotiations fail, it is likely that the Court will make its own binding determination.
The Court has considerable discretion when it comes to determining the amount and duration of spousal support, even to the point of denying it altogether. The way the Court
exercises discretion, however, will always depend on the specific facts of a case and on the criteria contained in FC 4320 and in other statutes, especially those pertaining to the parties’ “marital standard of living” (MSOL) and to each spouse’s post-judgment ability to be self-supporting.
Before proceeding further, allow me to distinguish between two types of “spousal support,” temporary spousal support and permanent spousal support.
Temporary spousal support refers to payments one spouse makes to the other from the date of separation until the date a judgment on Long Term Support is issued. Generally speaking, the Court uses a formula to determine the amount of temporary spousal support. Notably, the formula commonly used in California is the one that was created by the Family Law Courts of Santa Clara County.
Permanent spousal support, on the other hand, refers to the long term, post-judgment payments that one spouse makes to the other. In this situation, the courts have ruled that one cannot use a formula. Instead, in determining the amount and duration of permanent spousal support, the Court must consider the myriad of factors enumerated in Family Law Section 4320 and apply these to the circumstances and earning capacities of both spouses at the time of dissolution. On the basis of such an assessment, the Court
must then come up with an equitable arrangement for permanent spousal support.
The word “permanent” in the expression “permanent spousal support” makes it seem as if this kind of support is, by definition, unending, which is simply not so. Certainly, it is true that permanent spousal support might go on for a very long time, but there is no specific guidance demanding that it does. And of course, permanent spousal support inevitably
terminates with the death of either spouse and also, typically, with the remarriage of the recipient spouse. So practically speaking, “permanent spousal support” does not mean “support in perpetuity,” but rather support that lasts as long as the facts of a marriage warrant or, alternatively, until some point in the future when the Court determines that
the recipient spouse has becomes self-supporting.
In devising equitable arrangements for permanent spousal support, the Court begins with certain statutory presumptions. In long-term marriages (i.e., marriages of 10 years or more), the Court’s presumption is that permanent spousal support will last until the recipient becomes self-supporting, no matter how long that takes. In short-term marriages (i.e., marriages of less than 10 years), the presumption from the legislature is that permanent spousal support will probably terminate at half the length of the marriage. So, for example, in a marriage of four years, the presumption is that spousal support would terminate after two years, post separation; in a marriage of seven years, the presumption is that spousal support would terminate after three and a half years, post separation, and so on.
These presumptions, we must remember, are just that: presumptions, not laws or hard and fast rules. Depending on the facts of the case, the Court may see fit to order permanent spousal support in increments other than what these presumptions suggest.
So, for example, in a marriage of three years where both parties have continued to work and develop their careers, the Court may see fit to order only 6 months of permanent spousal support, and in a marriage of only 6 months where there is an infant who needs a period of extensive care, the Court may see fit to order permanent spousal support for a full eighteen months. The Court, in other words, will always be in the position of exercising its own discretion when it comes to the final determination of the length of spousal support.
So if these presumptions alone are not juridical, how exactly do they function for the Court? The answer here is simple: they serve as “good rules of thumb,” shedding the light of commonsense and logic on the entire issue of permanent spousal support. The shorter the marriage, the more likely it is that each spouse will have retained much of his/her pre-marital financial independence and hence, the less of a need there would be, post-judgment, for one spouse to sustain the other financially. On the other hand, the longer the marriage, the more likely it is that spouses will have developed the expectation of a particular, lifelong income level and standard of living, based on the efforts of a marital unit. Also, the more likely it is that one spouse will have taken some time off from work
life and thereby, become deficient in marketable job skills. And so in long marriages, it is logical for the Court to award permanent spousal support on a long-term, even life-long
When it comes to the procedure of determining an end to permanent spousal support, the legislature has set out the 10 year mark in marriages as a significant turning point. Below 10 years, the Court presumes that spousal support will have atermination date. Above 10 years, the Court presumes that spousal support will not terminate until death, retirement,
remarriage or self-support. But this latter presumption notwithstanding, the Court may still see fit to order termination of permanent spousal support in a 10 year + marriage if it looks at the facts of the case and makes a finding for such termination as a matter of fact. And, of course, the fact especially relevant here would be the date in the future when the recipient spouse is certain to become self-supporting at or above the MSOL and hence,
no longer in need of permanent spousal support. This could be achieved by individual earnings, or by a gross estate sufficient to provide for the party’s support, or by some mixture of these two.
Establishing a termination date for permanent spousal support as a matter of fact,
however, is not at all easy to do. Indeed, in long marriages, a factually-determinable date for the termination of permanent spousal support generally remains out of reach. Looking ahead at the 2 or 3 years following a divorce, the Court is typically unable to predict with solid, factual accuracy when the recipient spouse will become self-supporting. What this means is that equitable arrangements for spousal support are made at the time of dissolution, and the Court will just have to revisit the issue upon the request of one of
the parties at some point in the future.
In truth, the Court can determine a termination date for permanent spousal support in any way it wants to, so long as it bases its determination upon the finding of the recipient’s ability to be self supporting. Absent such a determination, the issue of spousal support does not go away and the Court retains its jurisdiction to modify both amount and duration of future payments unless that jurisdiction is specifically terminated or restricted in some way.
Both parties have the right to continue to investigate the financial affairs and earnings of the other, and either can pull the case back to court to litigate for a change in support. The Payor is always suspect as to her/his earnings and ability to pay, and once the Court has issued a Gavron Warning (In re Marriage of Gavron), the recipient is always subject to the imputation of phantom income if efforts to work have not been up to the level expected by
the Payor spouse.
©2011 James Frederic Cox