«CHILD AND SPOUSAL SUPPORT [REVISED 2012] ABOUT CJER The California Center for Judicial Education and Research (CJER), as the Education Division of ...»
• The child and spousal support orders are the result of a marital settlement agreement or judgment that provides that the spousal support order is nonmodifiable or that spousal support is waived, and the court’s jurisdiction over spousal support has been terminated; and
• The court’s jurisdiction over spousal support was otherwise previously terminated.
A motion to modify spousal support based on changed circumstances under Fam C §4326(a) must be filed by either party no later than six months from the date the child support order terminates. Fam C §4326(b).
See also Marriage of Kacik (2009) 179 CA4th 410, 425–426, 101 CR3d 745 (termination of child support must be reasonably contemporaneous 201–71 Child Support and Spousal Support §201.102 with the request for modification of spousal support in order to constitute change of circumstance under Fam C §4326).
If a motion to modify spousal support under this provision is filed, either party may request the appointment of a vocational training counselor under Fam C §4331. Fam C §4326(c). This statute remains in effect until January 1, 2014. Fam C §4326(e).
a. [§201.100] Increased Ability To Pay and Original Order Inadequate To Meet Needs The supporting spouse’s increased ability to pay may justify increased support, but only if there is a showing that the amount of support originally ordered was inadequate to meet the supported spouse’s reasonable needs at that time. Marriage of Smith (1990) 225 CA3d 469, 482–483, 274 CR 911. An enhanced ability to pay alone does not justify an increase in support. Marriage of Zywiciel (2000) 83 CA4th 1078, 1081, 100 CR2d 242.
b. [§201.101] Supported Spouse Cohabitating With Person of Opposite Sex Except as the parties have otherwise agreed in writing, there is a rebuttable presumption of a decreased need for spousal support if the supported party is cohabiting with a person of the opposite sex. Fam C §4323(a)(1). Cohabitation may constitute a material change of circumstances for purposes of modifying a spousal support award because the cohabitant’s income may be available to the supported spouse, and sharing a household may result in a decrease in the supported spouse’s expenses. Marriage of Bower (2002) 96 CA4th 893, 899, 117 CR2d 520.
JUDICIAL TIP: Under the California Domestic Partner Rights and Responsibilities Act of 2003 (see §201.2), it appears that the above rebuttable presumption applies to a supported domestic partner cohabitating with a person of the same sex.
c. [§201.102] Retirement of Supporting Spouse The supporting spouse’s retirement may constitute a material change in circumstances justifying a reduction or termination of spousal support.
Marriage of Reynolds (1998) 63 CA4th 1373, 1377–1379, 74 CR2d 636.
A supporting spouse cannot be compelled to work after the usual retirement age of 65 in order to pay the same level of spousal support as when he or she was employed. 63 CA4th at 1378–1379. Nor, however, may a supporting spouse be compelled to retire after the usual retirement age of 65, in order to increase his or her support obligation. Marriage of Kochran (2011) 193 CA4th 420, 429–430, 122 CR3d 61 (supporting §201.103 California Judges Benchguide 201–72 spouse’s hypothetical retirement income is not proper basis for increasing his spousal support obligation).
If the supporting spouse elects early retirement, however, the court may impute income to that spouse under the general principle that a supporting spouse must make reasonable efforts to obtain employment that would generate a reasonable income under the circumstances to meet a continuing support obligation. Marriage of Stephenson (1995) 39 CA4th 71, 80–81, 46 CR2d 8. But see Marriage of Meegan (1992) 11 CA4th 156, 161–163, 13 CR2d 799 (supporting spouse’s bona fide retirement at age 50 to enter monastery constituted change of circumstances justifying termination of support, on finding that retirement was not motivated by intention to avoid support obligation).
2. [§201.103] No Consideration of Income of Supporting Spouse’s Subsequent Spouse or Partner A court may not consider the income of a supporting spouse’s subsequent spouse or nonmarital partner when determining or modifying spousal support. Fam C §4323(b); Marriage of Serna (2000) 85 CA4th 482, 487, 102 CR2d 188. Both direct and indirect consideration of this income are precluded, e.g., a court may not consider the indirect effects of this income on the supporting spouse’s ability to pay support and on his or her standard of living. Marriage of Romero (2002) 99 CA4th 1436, 1438, 1442–1446, 122 CR2d 220 (legislative history of Fam C §4323(b) indicates that prohibition against consideration of new spouse’s or nonmarital partner’s income is “without exception”). On considering this income in connection with child support, see §201.16.
Family Code §4323(b) does not address how a court should consider the expenses resulting from a supporting spouse’s remarriage. It would be inequitable to permit the supporting spouse to claim the entire amount of these expenses on his or her income and expense declaration when the court is prohibited from considering any portion of the new spouse’s income. Therefore, some apportionment of these expenses between the supported spouse and the new spouse is required. 99 CA4th at 1445–1446.
3. [§201.104] Retroactive Modification The court may make an order modifying or terminating a spousal support order retroactive to the date on which the notice of motion or order to show cause was filed, or to any subsequent date. Fam C §3653(a).
If the order is made because of either party’s unemployment, the court must make the order retroactive to the date on which the notice of motion or order to show cause was served or the date of unemployment, whichever is later, unless the court finds good cause not to make the order retroactive and states its reasons on the record. Fam C §3653(b). “Good 201–73 Child Support and Spousal Support §201.106 cause” for denying retroactivity requires the court to make a good faith finding that nonretroactivity is justified by real circumstances, substantial reasons, and objective conditions. Marriage of Leonard (2004) 119 CA4th 546, 559, 14 CR3d 482.
If the court enters a retroactive order decreasing or terminating support, it may order the support obligee to repay any amounts the support obligor paid under the prior order that exceed the amounts due under the retroactive order. Fam C §3653(c). The court may require repayment over any period of time and in any manner it deems just and reasonable, including by an offset against future support payments or a wage assignment. Fam C §3653(c). In determining whether to order repayment, and in establishing the terms of repayment, the court must consider all of
the following factors (Fam C §3653(c)):
• The amount to be repaid.
• The duration of the support order before modification or termination.
• The financial impact on the support obligee of the method of repayment.
• Any other facts or circumstances the court deems relevant. See, e.g., Marriage of Petropoulos (2001) 91 CA4th 161, 174–175, 110 CR2d 111 (court had statutory authority to order reimbursement of support overpayments for entire period, from filing of husband’s modification motion until its determination nearly three years later).
4. [§201.105] Parties Agreement Not To Modify or Terminate Order A court may not modify or terminate spousal support when the parties have executed a written agreement or entered an oral agreement in open court that specifically precludes modification or termination of the support award. Fam C §§3591(c), 3651(d).
L. [§201.106] Termination of Spousal Support
The obligation to pay spousal support terminates in a variety of ways:
• When a spousal support order has a specific date on which support is due to terminate, the support will terminate on that date unless the order retains jurisdiction to extend it beyond that date. Fam C §4335.
• If the order is based on a contingent period of time, the order will terminate when the contingency occurs. The order may require the supported party to notify the supporting party when a contingency occurs. Fam C §4334(a).
§201.107 California Judges Benchguide 201–74
• Support will terminate when either party dies or the supported party remarries, unless the parties agree in writing that the support will continue. Fam C §4337.
• The court may issue a modification order terminating support on the basis of changed circumstances. See §§201.99–201.102.
M. [§201.107] Setting Aside Support Order The court may relieve a party from all or part of a spousal support order on any terms that may be just. For discussion, see §201.64.
N. [§201.108] Effect of Premarital Agreement A provision in a premarital agreement under which each party agrees to waive spousal support on dissolution of their marriage does not violate public policy and is not per se unenforceable, when the waiver is executed by intelligent, well-educated persons, each of whom is advised by counsel at the time of executing the waiver. Marriage of Pendleton & Fireman (2000) 24 C4th 39, 53–54, 99 CR2d 278.
A provision in a premarital agreement regarding spousal support, including a waiver of support, is not enforceable against a party who was not represented by independent counsel when the agreement was signed or if the provision is unconscionable at the time of enforcement. An otherwise unenforceable provision does not become enforceable merely because the party against whom enforcement is sought was represented by independent counsel. See Fam C §1612(c).
Family Code §1612(c) was enacted in 2002 and is not retroactive.
Marriage of Howell (2011) 195 CA4th 1062, 1077, 126 CR3d 539 (statute precluding enforcement of premarital spousal support waivers without independent counsel is not retroactive).
Appendix A: Sample Parent/Child Time-Sharing Percentages
Alternate weekends and 1/2 holidays and 4 weeks summer 86 24 (with alternating weekends continuing in summer, and makeup if weekends lost due to the 4 weeks) Alternate weekends and 1/2 holidays and 4 weeks summer 73 20 (with no alternating weekends in summer) Alternate weekends and 1/2 holidays and 1/2 summer (with 93 25 alternating weekends continuing in summer, and makeup if weekends lost due to the 6 weeks) Alternate weekends and 1/2 holidays and 1/2 summer (with 80 22 no alternating weekends in summer) Alternate weekends and 1/2 holidays, 1 evening/week, and 4 99 27 weeks summer (with alternating weekends continuing in summer, and makeup if weekends lost due to the 4 weeks)