The word “permanent” in the expression “permanent spousal support” is something of a misnomer. Yes, permanent spousal support might go on for a very long time, although no specific guidance requires that it does. Definitely, permanent spousal support ends when either the Payor or the Recipient dies and typically, it also ends once the Recipient remarries.
Practically speaking, then, “permanent spousal support” does not mean “support in perpetuity,” but rather “support that lasts as long as the facts of a marriage warrant or until the Court determines that the Recipient has become (or should have become) 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 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, [and in Marin county, sometimes marriages of less than 7.2 years]), the presumption is that permanent spousal support will last for about half the length of the marriage. So, for example, in a marriage of four years, the presumption is that spousal support will terminate after two years post separation; in a marriage of seven years, the presumption is that spousal support will terminate after three and a half years post separation.
These presumptions, however, are just that: presumptions, not laws or hard and fast rules. Depending on the facts of the case, the Court may see fit to disregard these presumptions and order permanent spousal support in other ways.
For example, in a three-year marriage where both parties have continued to work and develop their careers, the Court may see fit to order permanent spousal support for only six months instead of the presumed one and a half years. Similarly, in a six-month marriage where the parties have an infant who requires extensive care, the Court may see fit to order permanent spousal support for a full eighteen months instead of the presumed three months. The Court, in other words, will always evaluate the facts at hand and exercise its own discretion when it comes to the final determination of permanent spousal support.
If these presumptions, then, are not legal absolutes, how exactly do they function in the eyes of the Court?
The answer here is easy: they provide the Court with “good rules of thumb,” commonsensical perspectives on the entire issue of post-judgment spousal support.
The shorter the marriage, the more likely it is that each spouse has retained much of his/her pre-marital financial independence. Hence, the less need there typically is, post-judgment, for one spouse to sustain the other financially. Conversely, the longer the marriage, the more likely it is that spouses have been operating as a single financial unit and have come to expect a particular income level and standard of living. Also, the more likely it is that one spouse will have lost marketable job skills due to time taken off from work. So in long- term marriages, it simply makes good sense that permanent spousal support be ordered on a long-term, even life-long basis.
A corollary of this kind of thinking is that in very short marriages (e.g., 0-3 years), there may be little to no permanent spousal support—only ‘rehabilitative’ payments for a few months upon move out. Of course, it would be a very different picture here if small children were involved, though the overall thinking about the relationship between permanent spousal support and marital length would still remain the same.
Also, let us not forget that in the majority of dissolution cases, permanent spousal support actually starts out as a payment situation that the parties arrange informally on their own, all in the course of undergoing “relationship alteration.” Legal action per se, in other words, is not always the initiator of permanent spousal support and if we consider the way personal dynamics commonly evolve in dissolutions, it is easy to see why.
Spouses who split up often start out by handling their financial obligations in much the same way as they did during their marriage. Inevitably, however, the usual money management practices of the marriage gradually disappear, giving way to a situation that resembles spousal support. The spouse who was the low income earner starts to become the Recipient of funds from the high income earning spouse, who now takes on the role of Payor. An informal support situation such as this might begin immediately after the parties separate, though in my experience, it often takes shape somewhere between three and six months post separation.
Once a dissolution case goes to trial, the Court will have discretion in deciding whether or not to regard the inception of this sort of informal support as part of the overall presumptive timeline for permanent spousal support.
Imagine, in this regard, the following hypothetical case. Spouses ending a seven year marriage separate but continue managing their finances from the same bank account they used during the marriage. Six months after their DOS, they commence an informal arrangement of spousal support, which later on, they formalize into a support order. When the case finally goes to trial two years after the DOS, the Court recognizes that support has indeed been continuous from the DOS; i.e., two years of spousal support have already occurred. So, according to presumption (i.e., support for half the length of the marriage), and with no other mitigating facts to consider, the Court could (and likely would) exercise its discretion and order only one and one half more years of permanent spousal support, not a full 3.5 years.
As we have already seen, the 10 year mark in a marriage is the statutory milestone for thinking about the duration of permanent spousal support. But surely, we might ask: is a 10.1 year marriage so very different from a 9.9 year marriage? Certainly not, it would seem, especially if the only factual difference between these two marriages were merely that of length. Yet because of their lengths, these two marriages lead to two different statutory presumptions about the duration of permanent spousal support.
Along these same lines, we might also reflect further on the statutory grouping of all marriages either above or below the 10 year mark. Marriages of 10.1 years, of 15 years, of 20 years, and of 25.8 years or longer all qualify as long-term marriages. But are all these marriages equally worthy of the same presumption when it comes to the determination of permanent spousal support? Does it matter to the Court, for example, if a long-term marriage overshoots the 10 year presumptive divide by very little (as in a marriage of 10.1 years) or by quite a lot (as in the 40 year marriage of Albert and Tipper Gore)?
No matter what the length of a marriage is, the Court always applies equitable principles when it comes to limiting the duration of support. From the Court’s perspective, the 10 year mark simply signals a different way of managing these principles: the statutory presumption of a limitation proportional to marital length is replaced by a case rule requiring the Court to find as a matter of fact that the Recipient will be self supporting by the time of a designated support termination date.
And so, at the 10 year mark and beyond, the concept of support proportional to marital length can still play a role in the Court’s discretionary thinking. In fact, California statutory law has codified a portion of the old Santa Clara County Rule of Thumb, indicating that absent other atypical factors as enumerated in FC 4320, it makes sense that the duration of payment of spousal support should be proportional to the length of the marriage. This policy correlates well with the expectations of the parties themselves in a dissolution: the longer the marriage, the greater the expectation of continued support, post-separation.
At the same time, however, the Court’s determination of the duration of support in 10+ year marriages will also necessarily be based upon a factual finding that the Recipient is, or should be, capable of self support at or above the MSOL either through individual earnings, through the Recipient’s gross estate, or through some combination of these two.
As it turns out, establishing the factual basis of the Recipient’s eventual self-support is not at all easy to do. Looking ahead to the next 5 to 10 years of economic effort following a divorce (even from the vantage point of 2-3 years after the date of separation, which is typically when the parties are finally in trial), the Court is often unable to predict with solid, factual accuracy when the Recipient will become self-supporting at the MSOL. Given this lack of prescience on the part of the Court, there is nothing more for it to do than make a determination of spousal support at the time of trial and then reassess this spousal support order at some point in the future upon the request of one of the parties.
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 at the MSOL. Absent such a determination, however, the issue of spousal support does not simply go away. On the contrary, the Court retains jurisdiction to modify both amount and duration of support unless its jurisdiction is explicitly terminated or somehow restricted by the parties themselves.
Post judgment, each party has the right to continue to investigate the financial affairs and earnings of the other, and either party can pull the case back to court to litigate for a change in support. The Payor remains subject to suspicions surrounding her/his earnings and ability to pay, and once the Court issues a Gavron Warning (cf. In re Marriage of Gavron), the Recipient remains subject to the imputation of phantom income if the Recipient’s efforts to work do not square with what the Court reasonably expects.
©2012 James Frederic Cox