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«CHILD AND SPOUSAL SUPPORT [REVISED 2012] ABOUT CJER The California Center for Judicial Education and Research (CJER), as the Education Division of ...»

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Marriage of Schulze (1997) 60 CA4th 519, 524–527, 70 CR2d 488 (Fam C §4320 clearly contemplates a “ground-up” examination of need for and appropriate level of permanent support, rather than beginning with figure based on temporary support order). See Marriage of Zywiciel (2000) 83 CA4th 1078, 1081–1082, 100 CR2d 242 (in determining permanent spousal support, judge may not abdicate responsibility by turning to DissoMaster temporary support guideline, even if used only as a reference point); Marriage of Burlini, supra, 143 CA3d at 68 (court may not use local guidelines for temporary spousal support to compute permanent spousal support).

C. [§201.71] Factors Court Must Consider in Awarding Permanent Support Unlike child support, spousal support is not a mandatory requirement in dissolution proceedings. Marriage of Meegan (1992) 11 CA4th 156, 161, 13 CR2d 799. Computer programs cannot be used to calculate permanent support. In determining whether to award permanent support, and the amount and duration of that support, the court must consider and weigh all of the 14 factors listed in Fam C §4320, to the extent they are relevant. Marriage of Cheriton (2001) 92 CA4th 269, 302, 111 CR2d 755.

201–57 Child Support and Spousal Support §201.73 The court may determine the appropriate weight to be given to each factor, with the goal of accomplishing substantial justice for the parties.

Marriage of Smith (1990) 225 CA3d 469, 481–482, 274 CR 911.

However, the court may not act arbitrarily but must exercise its discretion along legal lines, taking into consideration the applicable circumstances of the parties set forth in Fam C §4320, particularly the parties’ reasonable needs and financial abilities. A failure to do so is reversible error.

Marriage of Cheriton, supra, 92 CA4th at 304.

The Fam C §4320 factors are described in detail in §§201.72–201.85.

1. [§201.72] Sufficiency of Earning Capacities To Maintain Marital Standard of Living The court must consider the extent to which each party’s earning capacity is sufficient to maintain the standard of living established during the marriage, taking into account all of the following factors (Fam C


• The supported party’s marketable skills.

• 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.

• The possible need for retraining or education to acquire more marketable skills or employment. See Marriage of Watt (1989) 214 CA3d 340, 347–348, 262 CR 783 (wife did not demonstrate present need for retraining or education to attain more marketable skills, notwithstanding her intention to begin a specified training program, when her income before training was higher than the amount she would earn on completing the training program).

• The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment incurred during the marriage to permit the supported party to devote time to domestic duties. See Marriage of Cheriton (2001) 92 CA4th 269, 306, 111 CR2d 755 (insufficient evidence that wife’s domestic duties hampered her career); Marriage of Kerr (1999) 77 CA4th 87, 94, 91 CR2d 374 (in setting support, court considered wife’s impaired earning ability caused by her 20-year absence from workforce to care for husband and children, which allowed husband to develop and maintain lucrative career).

2. [§201.73] Contributions to Supporting Party’s Education and Training The court must consider the extent to which the supported party contributed to the supporting party’s attainment of an education, training, §201.74 California Judges Benchguide 201–58 career position, or license. Fam C §4320(b). This provision must be interpreted broadly and requires the court to consider all of the supported party’s efforts to assist the supporting party in acquiring an education and enhanced earning capacity, i.e., the court must consider living expenses contributed by the supported party, as well as education expenses.

Marriage of Watt (1989) 214 CA3d 340, 350–351, 262 CR 783 (court should give “weighty” consideration to supported party’s contributions in deciding propriety and extent of spousal support award). This provision is, however, limited to contributions the supported spouse made to the other spouse’s “attainment” of an education or career position and does not apply with respect to domestic contributions the supported spouse made that allegedly aided the other spouse in carrying out a career position he or she had already attained before the marriage. Marriage of Cheriton (2001) 92 CA4th 269, 306, 111 CR2d 755.

3. [§201.74] Supporting Party’s Ability To Pay The court must consider the supporting party’s ability to pay spousal support, taking into account his or her earning capacity, earned and unearned income, assets, and standard of living. Fam C §4320(c).

The statutory guidelines governing spousal and child support do not limit the circumstances under which a court may consider the supporting spouse’s earning capacity. Marriage of Simpson (1992) 4 C4th 225, 232– 233, 14 CR2d 411. For example, it need not be shown that the supporting spouse has willfully avoided fulfilling family support obligations through deliberate misconduct. Marriage of Stephenson (1995) 39 CA4th 71, 78– 80, 46 CR2d 8. Evidence must be presented, however, showing that the supporting party has both the ability and opportunity to obtain employment that would generate a higher income. Marriage of Reynolds (1998) 63 CA4th 1373, 1378, 74 CR2d 636; Marriage of Stephenson, supra, 39 CA4th at 80. The court may not order spousal support, however, based on a finding that a spouse’s present earnings from long-term employment can be increased by requiring that person to take a retirement and then requiring that person to take an available, but different, position adding the new retirement income to the new position income. Marriage of Kochan (2011) 193 CA4th 420, 427, 122 CR3d 61. See §201.102. On considering earning capacity in setting child support, see §§201.18– 201.25.

A party’s ability to pay encompasses his or her assets as well as income. Therefore, the court may look to the assets controlled by the supporting party, other than income, as a basis for awarding spousal support. Marriage of Cheriton (2001) 92 CA4th 269, 305, 111 CR2d 755 (court should have considered husband’s “substantial assets” in awarding spousal support). See Fam C §4338 (spousal support is payable from party’s earnings and income, community property, quasi-community 201–59 Child Support and Spousal Support §201.77 property, and separate property). The court has discretion to exclude funds that a husband used to capitalize and vertically integrate his business from his income for purposes of calculating his spousal support obligation.

Marriage of Blazer (2009) 176 CA4th 1438, 1447, 99 CR3d 42.

Support may consist of a percentage of the supporting party’s future income from the exercise of stock options (Marriage of Kerr (1999) 77 CA4th 87, 95, 91 CR2d 374) or from the receipt of bonuses (Marriage of Ostler & Smith (1990) 223 CA3d 33, 272 CR 560).

4. [§201.75] Parties’ Needs The court must consider each party’s needs based on the standard of living established during the marriage. Fam C §4320(d). For discussion of marital standard of living, see §201.86.

5. [§201.76] Parties’ Obligations and Assets The court must consider each party’s obligations and assets, including separate property. Fam C §4320(e).

A court may consider a party’s separate property when determining his or her ability to pay support. See Fam C §4338(d) (separate property may be used to pay spousal support); Marriage of de Guigne (2002) 97 CA4th 1353, 1365, 119 CR2d 430 (fact that marriage generated little or no community property does not relieve party of support obligation).

A court may also consider a party’s separate property when determining his or her need for support. In an original or modification proceeding, when there are no children and a party has or acquires a separate estate, including income from employment, sufficient for his or her proper support, no support may be ordered or continued for this party.

Fam C §4322. Denial of support is mandatory if the sufficiency threshold is met, irrespective of the circumstances the court would otherwise consider under Fam C §4320. Marriage of Terry (2000) 80 CA4th 921, 928, 95 CR2d 760. The court must determine whether the party’s separate estate, including assets acquired through the final division of community property, is, or is not, capable of providing for that party’s proper support.

The court is not limited to considering the income actually and presently produced by the estate. It may look to the estate as a whole, including the actual and reasonable income potential from investment assets, as well as their total value, in resolving the issue of the estate’s sufficiency for proper support. 80 CA4th at 929–931.

6. [§201.77] Length of Marriage The court must consider the duration of the marriage. Fam C §4320(f). This factor is generally more relevant to the duration of spousal support than to the amount of support to be ordered. It is of primary §201.78 California Judges Benchguide 201–60 concern in determining whether jurisdiction over spousal support should be retained indefinitely, or whether spousal support should be ordered for a limited term. See §201.92.

7. [§201.78] Employment of Supported Party and Its Impact on Children The court must consider the supported party’s ability to engage in gainful employment without unduly interfering with the interests of dependent children in that party’s custody. Fam C §4320(g).

 JUDICIAL TIP: It may be appropriate for a supported spouse to defer employment or training to care for dependent children, e.g., when caring for a child with special needs. See Marriage of Rosan (1972) 24 CA3d 885, 893–894, 101 CR 295.

8. [§201.79] Age and Health of Parties The court must consider the age and health of the parties. Fam C §4320(h). An older, less healthy supported spouse is obviously more likely to receive a favorable long-term support order than is a younger, more healthy spouse. However, support may not be ordered on the basis of the age and health of the parties alone. See Marriage of Wilson (1988) 201 CA3d 913, 917–920, 247 CR 522 (following childless five-year marriage, no abuse of discretion in terminating support for permanently disabled spouse 58 months after dissolution; trial court relied primarily on the fact that the marriage was not lengthy, but properly weighed all eight factors of former CC §4801(a), predecessor of Fam C §4320). Compare Marriage of Heistermann (1991) 234 CA3d 1195, 1200–1203, 286 CR 127 (following marriage of almost nine years, trial court erred in terminating support for physically disabled spouse after passage of one year when there was no evidence that the spouse could be self-supporting).

9. [§201.80] History of Domestic Violence The court must consider any documented evidence of any history of domestic violence, as defined in Fam C §6211, between the parties,

including, but not limited to (Fam C §4320(i)):

• Supported party’s emotional distress resulting from domestic violence committed by the supporting party.

• Any history of violence against the supporting party by the supported party.

See Marriage of MacManus (2010) 182 CA4th 330, 337–338, 105 CR3d 785 (trial court did not abuse its discretion by considering parties’ 201–61 Child Support and Spousal Support §201.83 history of domestic violence when it reallocated trust account distributions to past temporary spousal support).

See also Fam C §§4320(m), 4325 (rebuttable presumption that spouse convicted of domestic violence is not entitled to support).

10. [§201.81] Tax Consequences The court must consider the immediate and specific tax consequences of spousal support to each party. Fam C §4320(j).

Spousal support payments are included in the payee’s gross income and are deductible by the payor. See IRC §§71, 215; Rev & T C §§17081, 17201.

Because federal law does not recognize domestic partnerships, it appears that any domestic partner support (see Fam C §§297.5(a), 299(d)) will not be taxable to the recipient or deductible by the payor.

11. [§201.82] Relative Hardships The court must consider the balance of the hardships to each party.

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