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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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Fam C §4320(k).

12. [§201.83] Goal of Self-Support When ordering spousal support, the court must consider the goal that the supported party will be self-supporting within a reasonable period of time. Except in a marriage of long duration (generally 10 years or longer), a “reasonable period of time” is one-half of the length of the marriage. The court may, however, order support for a greater or lesser length of time based on the parties’ circumstances. Fam C §4320(l). The Supreme Court has noted that this provision reflects that the law has progressed from a rule that entitled some women to lifelong support as a condition of the marital contract of support to a rule that entitles either spouse to postdissolution support for only as long as necessary to become selfsupporting. Marriage of Pendleton & Fireman (2000) 24 C4th 39, 53, 99 CR2d 278.

A “displaced homemaker” from a lengthy marriage may find it impossible to enter the job market, and it may be appropriate to order spousal support for an extended duration. Marriage of Heistermann (1991) 234 CA3d 1195, 1204, 286 CR 127.

If the party seeking support has unreasonably delayed or refused to seek employment consistent with his or her ability, the court may consider this factor in fixing the amount and duration of support in the first instance, as well as in a subsequent modification proceeding. 234 CA3d at 1204.

§201.84 California Judges Benchguide 201–62 13. [§201.84] Conviction for Domestic Violence or Attempted Murder or Solicitation of Murder If one spouse has been convicted of domestic violence against the other spouse within five years of the filing of the dissolution proceeding, or at any time thereafter, there is a rebuttable presumption against awarding temporary or permanent spousal support to the abusive spouse.

Fam C §§4320(m), 4325(a). This presumption may be rebutted by a preponderance of the evidence. Fam C §4325(c). The court may consider documented evidence of a convicted spouse’s history as a victim of domestic violence perpetrated by the other spouse, or any other factors the court finds just and equitable, as conditions for rebutting the presumption.

Fam C §4325(b).

If one spouse has been convicted of attempting to murder the other spouse or of soliciting the murder of the other spouse, the convicted spouse is prohibited from receiving any temporary or permanent spousal support, or any medical, life, or other insurance benefits or payments from the injured spouse. Fam C §4324.

14. [§201.85] Other “Just and Equitable” Factors The court must consider any other factors the court determines are just and equitable. Fam C §4320(n).

For example, in Marriage of Shaughnessy (2006) 139 CA4th 1225, 1244, 43 CR3d 642, the court held that it is within the trial court’s discretion to consider evidence of monetary gifts from the obligee’s parents as one factor in determining an appropriate spousal support award.

D. [§201.86] Marital Standard of Living In awarding permanent spousal support, the court must base its decision on the standard of living established during the marriage. Fam C §4330(a). There is no set formula for determining the marital standard of living. The court must weigh the marital standard along with all the other factors in Fam C §4320 in fixing an amount of support that is just and reasonable. Fam C §4330(a).

The marital standard of living means the general station in life the parties enjoyed during their marriage. Marriage of Smith (1990) 225 CA3d 469, 475, 274 CR 911. It is a general description that is not intended to specifically spell out or narrowly define a mathematical standard. 225 CA3d at 491. It may be determined from the parties’ average income over a period of time or from their expenditures. Marriage of Weinstein (1991) 4 CA4th 555, 565–566, 5 CR2d 558.

The marital standard of living is a reference point against which the court may weigh the other statutory considerations. Whether to fix spousal support at an amount greater than, equal to, or less than what the 201–63 Child Support and Spousal Support §201.87 supported spouse may require to maintain the marital standard of living is within the court’s discretion after weighing the statutory factors. Marriage of Cheriton (2001) 92 CA4th 269, 308, 111 CR2d 755.

A spouse’s high income may be considered with respect to his or her ability to pay support. But the fact that a high income enables this spouse to maintain a standard of living that is higher than the marital standard of living does not mean that the supported spouse is entitled to an amount of support that will allow the supported spouse to also maintain a higher standard of living. 92 CA4th at 307–308; Marriage of Weinstein, supra, 4 CA4th at 568.

If there is evidence that the family’s standard of living was low when compared with available income during marriage, the court may be justified in setting spousal support at a level above the parties’ actual standard of living during marriage. Marriage of Cheriton, supra, 92 CA4th at 307–308. See Marriage of Drapeau (2001) 93 CA4th 1086, 1096, 114 CR2d 6 (court may consider parties’ history of saving significant portions of their income). Likewise, if the parties intentionally maintained a low standard of living so that one of them could obtain an advanced degree with the expectation that this party’s increased earnings would enable the parties to enjoy a higher standard of living, the court should take into account the impact this party’s absence from the full-time work force had on the parties’ standard of living during the marriage.

Marriage of Watt (1989) 214 CA3d 340, 351–352, 262 CR 783.

E. Findings 1. [§201.87] Mandatory Findings on the Marital Standard of Living A court must make specific factual findings with respect to the parties’ standard of living during the marriage. Fam C §4332. Equally important, the court should make a specific finding that the amount of the support order is or is not sufficient to meet the reasonable needs of the supported spouse, considering the parties’ marital standard of living at the time of separation and the other Fam C §4320 factors. Marriage of Smith (1990) 225 CA3d 469, 491–493, 274 CR 911.

Ideally, the findings should be specific enough to be helpful in subsequent modification or appellate proceedings. In cases in which the parties are represented by counsel, courts are encouraged, with counsel’s assistance, to make specific findings. However, in cases in which the parties represent themselves, it is unrealistic to expect them to use anything other than the everyday understanding of the term in its ordinary sense; therefore, in these cases, referring to the standard of living as upper, middle, or lower income, is sufficient. 225 CA3d at 491.

§201.88 California Judges Benchguide 201–64  JUDICIAL TIP: Although the court may use the common “upper,” “middle,” and “lower” income descriptors, it should make more specific findings about the marital standard of living (e.g., how many homes and how large, how many cars, travel habits, savings and investments) because greater specificity is helpful when responding to a modification motion.

2. [§201.88] Findings of Other Circumstances on Request Factual findings on all other circumstances on which the support order is based are required only on the request of either party. Fam C §4332. A party may request, for example, findings on the underlying assumptions regarding future circumstances, the needs of the supported spouse, and whether the amount awarded is sufficient to meet those needs.

F. [§201.89] Statement of Decision On the request of either party, an order modifying, terminating, or setting aside a support order must include a statement of decision. Fam C §3654.

G. [§201.90] Gavron Warning When ordering permanent spousal support, the court may advise the supported party that he or she should make reasonable efforts to assist in providing for his or her support needs. The court may decide that this warning is inadvisable if the case involves a marriage of long duration (generally 10 years or longer). Fam C §4330(b). In giving the advisement, the court must take into account the Fam C §4320 factors considered by the court in ordering spousal support. Fam C §4330(b); See §§201.71–

201.85. This advisement is often called a “Gavron” warning after the leading case, Marriage of Gavron (1988) 203 CA3d 705, 250 CR 148.

Inherent in the concept that the supported spouse’s failure to make good-faith efforts to become self-supporting can constitute a change in circumstances that could warrant a modification in spousal support is the premise that the supported spouse is made aware of the obligation to become self-supporting. Marriage of Gavron, supra, 203 CA3d at 712.

See Marriage of Schmir (2005) 134 CA4th 43, 53–58, 35 CR3d 716 (order reducing spousal support reversed because no warning given to recipient spouse).

Although the statute is couched in discretionary language, actual practice is to advise the spouse receiving support of the need to become self-supporting within a reasonable time. One factor appellate courts consider in deciding whether a modification or termination of spousal support was proper is whether a Gavron warning was given. Marriage of Gavron, supra, 203 CA3d at 711–712.

201–65 Child Support and Spousal Support §201.92  JUDICIAL TIPS:

• The court should put its expectations about the plan for the supported spouse to become self-supporting on the record. That puts the spouses on notice and makes the plan available for review or for any motion to modify, terminate, extend, or enforce support.

• To help assess a party’s ability to obtain employment, the court may order the party to submit to an examination by a vocational training counselor under Fam C §4331.

H. [§201.91] Duration of Support Order The duration of permanent spousal support is necessarily dependent on the parties and the facts and circumstances of the case. Marriage of Smith (1990) 225 CA3d 469, 480, 274 CR 911. In some cases, very shortterm support is appropriate for the purpose of financially assisting one spouse in the transition to single status or until the proceeds from an ordered property division or sale can be received. 225 CA3d at 480–481.

At the other end of the spectrum are cases in which the purpose of spousal support is to provide financial assistance to the supported spouse until the death of one of the spouses, because the supported spouse is unable to generate income from employment or assets or, in any event, an amount of income sufficient to provide for his or her own reasonable living expenses.

Somewhere within this spectrum is the myriad of factual circumstances that the trial court must consider in making its order. For example, it may be appropriate to order support for a specific period of time for the purpose of enabling the supported spouse to obtain or complete an education, to refrain from employment in order to remain home to care for young children until they reach an age at which a return to employment would be appropriate, or to become self-supporting within a reasonable time. 225 CA3d at 481.

I. [§201.92] Retention of Jurisdiction There are different rules for marriages of short to mid-duration than there are for marriages of long duration.

In marriages of short to mid-duration, absent a reservation of jurisdiction, a court cannot reinstate, extend, or modify a spousal support order after the expiration of the underlying order. Fam C §4335; Marriage of Beck (1997) 57 CA4th 341, 344, 67 CR2d 79.

However, when a marriage is of long duration, the court retains jurisdiction indefinitely over spousal support, in the absence of the parties’ written agreement to the contrary or a court order terminating spousal support. Fam C §4336(a). In such a case, an express reservation of jurisdiction over spousal support is not required. Marriage of Ostrander §201.93 California Judges Benchguide 201–66 (1997) 53 CA4th 63, 65–66, 61 CR2d 348. There is a rebuttable presumption affecting the burden of producing evidence that a marriage of 10 years or more, from the date of marriage to the date of separation, is a marriage of long duration. Fam C §4336(b). There is no limitation, however, on the court’s discretion to terminate spousal support in a later proceeding on a showing of changed circumstances. Fam C §4336(c);

Marriage of Christie (1994) 28 CA4th 849, 858, 864, 34 CR2d 135.

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