Family Law Questions and Answers

The California Courts can employ DissoMaster, which is a computer program, to calculate temporary spousal support obligations. Courts are not permitted to use DissoMaster to calculate permanent support obligations, however, and California does not have set guidelines for determining such obligations. Instead, the Courts must assess the sixteen factors listed in Family Law Code Section 4320 and award spousal support based on that evaluation. In other words, the Courts have broad discretion in determining how much permanent spousal support is owed. The Court in San Diego Family Law also has the legal discretion to use either the DissoMaster calculation or the FLC 4320 factors for the initial [temporary and pre-judgment] spousal support order.

The California Courts will grant spousal support when there is a disparity in income or other factors which the Court deems appropriate. The parties can also agree to an amount of permanent and/or temporary spousal support.

Under California law, couples can enter into agreements prior to their marriage that defines their rights with regard to spousal support. Typically, prenuptial agreements will not be upheld if they are found to be “unconscionable”. There are exceptions, also, for agreements that were drafted or executed under duress, are the product of fraud, either party was unaware of the either’s property or debts or are otherwise unfair. In such instances, the Courts may decline to enforce prenuptial agreements. The Courts may also set aside a prenuptial agreement if it weighs unfairly in favor of one spouse or leaves one spouse without adequate means for their support. Also, while spousal support waivers can be disfavored in San Diego Family Law Court, they can also be upheld and enforced. All is up to the Judge, and this is an extremely complicated and fact-based issue. Child support cannot be legally waived by either party and would be considered unenforceable.

The Courts may also award one party spousal support if they find it is justified under the facts of the case and each case is individual and different. The Courts will weigh the factors set forth in Family Law Code Section 4320 when considering whether to grant a request for spousal support, including the party’s ages, income, and earning potential, and the standard of living they enjoyed during the marriage. They will also look at each party's mental and physical health, what property they hold separately, and whether they bore the primary responsibility for raising the couple's children. Notably, the Courts will also evaluate whether the party from whom support is sought has the ability to pay such support. Evidence that the Courts will examine in assessing whether to grant spousal support includes tax returns, bank statements, employment records, and other financial documents, as well as oral testimony and other documentation.

If the Courts find that either party engaged in acts of domestic violence during the marriage, it may impact the decision as to whether to grant spousal support. After the divorce, if the party receiving support remarries, the support obligation will automatically terminate; the remarriage of the obligor spouse does not result in termination. Further, if the party receiving spousal support cohabitates with a romantic partner per the Family Law Code, there is a presumption that they have a reduced need for support.

Either party subject to a support order can seek a modification unless the order specifically states it cannot be modified. In other words, the party receiving support and the party paying support both have the right to request a modification. Typically, the Courts will only grant a modification when the party seeking the change shows that there has been a significant change in circumstances if a permanent [post-judgment] order, but this does not apply in most cases to temporary [pre-judgment] orders. Scenarios that may be grounds for granting a modification include a substantial increase or decrease in the income or assets of either party, job loss, and physical or mental illness. Also, once a party reaches the age of 65, there is a presumption of decreased earning ability. If the party over 65 years of age continues to voluntarily have an earning ability and work, then this could be considered for spousal support.

Essentially, under California law, there are two kinds of spousal support: temporary and permanent. Temporary spousal support is sought while the divorce is pending. If the Court grants a request for temporary spousal support, the obligor will be required to pay support until the divorce is final. Temporary support aims to help the spouse receiving the support to pay for their needs before the divorce is final and property distribution is made. Permanent spousal support, on the other hand, is granted after the divorce is final and, some will contend, allows a party to maintain the standard of living that the couple appreciated while they were married.

Temporary support typically endures until the divorce is final. The Courts have the discretion to determine how long a permanent spousal support obligation will endure. In some instances, a Court will issue an order stating that spousal support will only be paid until the party receiving support becomes financially independent. For example, the court may require them to undergo job training or pursue employment so that they can support themselves. In other cases, the Court may order job contacts as a condition of continued spousal support. If a marriage is of a duration of more than ten years, then a special Family Law Code applies, which considers this a “long-term marriage”. Under Family Law Code Section 4320, spousal support is to terminate [in most cases] no later than one-half the duration of the marriage. An example would be a marriage of 9 years would terminate in 4.5 years. Contrasted with a long-term marriage of 15 years which would not necessarily terminate in 7.5 years. It cannot be emphasized enough that these are fact and evidence-based considerations with multiple factors.