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FAMILY LAW SERVICES
Spousal Support
The two main issues regarding to spousal support are: 1) the amount of spousal support and, 2) the duration of spousal support.
The duration of spousal support is closely linked to the length of the marriage and often you will hear divorce practitioners say that spousal support will last for one-half the length of the marriage.
The duration of spousal support is ultimately left to the discretion of the court and is bound within certain general equitable principals and guidelines most often set forth in the common law case histories. However, in marriages of less than ten years, the statute provides a presumption that support should be granted for half the length of the marriage.
In California, the statute indicates that when permanent support is established at the time of trial, it is an abuse of discretion for the court to set a future termination date if the marriage is of lengthy duration. The statute goes on to indicate that any marriage of ten years in duration is considered a lengthy marriage.
As a practical matter, in the late 1990s it appears that spousal support duration is linked to a transition period from married life to single life. The circumstances vary from person-to-person, but the courts tend to disfavor "lifetime support."
The court has a broad discretion in ascertaining the amount of spousal support as well as its duration.. Some California counties have adopted a guideline which suggests the appropriate range of spousal support on a temporary basis. Many counties do not allow the guideline to be the sole indicator of the amount of permanent spousal support. California State law provides that spousal support is determined by a careful review of a number of factors. The controlling statute states as follows:
4320. 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 to pay of the supporting party, 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, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party where the court finds documented evidence of a history of domestic violence, as defined in Section 6211, against the supported party by the supporting party.
(i) The immediate and specific tax consequences to each party.
(j) The balance of the hardships to each party.
(k) 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.
(l) Any other factors the court determines are just and equitable.
California Law states that certain orders may be modified after a final judgment has been made.
There are three areas in which post-judgment modifications are most common:
- Child Custody/Visitation Orders
- Child Support orders
- Spousal Support orders
The court will not Modify the Property Division that has been Adjudicated by a Final Judgment, however, there is a possibility that even such judgments may be rescinded if a timely set-aside motion under Ca Civ Pro § 473(b) or Ca Fam § 2120 et seq. set-aside proceeding on statutorily-prescribed grounds and within statutorily-prescribed time limits is brought.
1. Modification of Child Custody/Visitation Orders: Child custody and visitation orders are generally modifiable whenever the court finds a modification is "necessary or proper" and in the child's best interests. [Ca Fam § 3022]. Typically, the parent seeking a modification must show a "significant change of circumstances" that would support such a modification.
2. Modification of Child Support Orders: Child support orders are modifiable "at any time as the court deems necessary." Even if the parties have agreed that support may not be modified, child support may be modified at any time to the mandatory statewide child support guidelines.
3. Modification of Spousal Support Orders: Spousal support awards and agreements are modifiable throughout the support period except as to amounts accrued prior to filing of application for modification and except as otherwise provided by agreement of the parties. However, unlike child support, the court's continuing power to modify spousal support is dependent on the terms of the court's order. Unless jurisdiction to award support has been reserved, postjudgment spousal support is limited by the stated duration of the order. [Ca Fam §§ 3603, 3651(c), 4333, 4335]
A "Family support" order may be modified to separate orders for child and spousal support where there has been a change of circumstances justifying increased child support.
Mediation
There are two types of Mediation involved in family law:
1) Court-ordered mediation regarding custody
2) Voluntary mediation.
Each and every party who has a dispute about custody in California must attend a mandatory custody mediation session at the courthouse. Custody and visitation disputes are now referred by the Court for mandatory counseling at "Conciliation Court" (within the Courthouse) prior to the Court hearing. If an Order to Show Cause (OSC) is filed on your behalf, a copy will be given to you.
Voluntary mediation is the best solution and can be used to resolve all or parts of a dissolution and/or custody dispute(s). The end result is much less strain on the family and on the financial cost of the proceedings. Mostly, in the case of custody, it will greatly reduce the painful burden divorce can place on the child(ren). No matter who the family is, the period of separation and divorce are painful and hard to sometimes understand.
Mediation is aimed at reducing the pain and stress. With the help of the mediator, couples negotiate their own settlement and learn the techniques for resolving future differences. Mediation is for couples who want to retain control over the decisions that affect their lives and don't want their children caught in the middle. Mediation is not just for couples who already know how to cooperate, mediators show people how to work together productively in any circumstance.
FOR ASSISTANCE WITH FAMILY LAW IN SAN DIEGO
CALL TOM HUGUENOR TODAY AT 858-546-4868
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