Spousal SupportFactors to Be Considered in Ordering Support

Section § 4320

Explanation

When a court decides on spousal support in a divorce, it looks at many factors to ensure fairness. These include both spouses' abilities to earn money, the supported spouse’s contributions to the other’s career, and if either spouse stayed home to take care of the family. The court also considers the marriage’s duration, both parties’ needs, their assets and debts, and any history of domestic violence. It assesses how working might affect the care of any children and considers each person's age, health, and financial outlook, including tax implications. The ultimate aim is for the supported spouse to become self-sufficient if possible, usually within half the time of the marriage length. However, for longer marriages, support might be extended. The court also takes into account any criminal convictions of abusive spouses and any other relevant issues that may impact fairness.

In ordering spousal support under this part, the court shall consider all of the following circumstances:
(a)CA Family Law Code § 4320(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)CA Family Law Code § 4320(a)(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)CA Family Law Code § 4320(a)(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)CA Family Law Code § 4320(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)CA Family Law Code § 4320(c) The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.
(d)CA Family Law Code § 4320(d) The needs of each party based on the standard of living established during the marriage.
(e)CA Family Law Code § 4320(e) The obligations and assets, including the separate property, of each party.
(f)CA Family Law Code § 4320(f) The duration of the marriage.
(g)CA Family Law Code § 4320(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)CA Family Law Code § 4320(h) The age and health of the parties.
(i)CA Family Law Code § 4320(i) All documented evidence of any history of domestic violence, as defined in Section 6211, between the parties or perpetrated by either party against either party’s child, including, but not limited to, consideration of:
(1)CA Family Law Code § 4320(i)(1) A plea of nolo contendere.
(2)CA Family Law Code § 4320(i)(2) Emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party.
(3)CA Family Law Code § 4320(i)(3) Any history of violence against the supporting party by the supported party.
(4)CA Family Law Code § 4320(i)(4) Issuance of a protective order after a hearing pursuant to Section 6340.
(5)CA Family Law Code § 4320(i)(5) A finding by a court during the pendency of a divorce, separation, or child custody proceeding, or other proceeding under Division 10 (commencing with Section 6200), that the spouse has committed domestic violence.
(j)CA Family Law Code § 4320(j) The immediate and specific tax consequences to each party.
(k)CA Family Law Code § 4320(k) The balance of the hardships to each party.
(l)CA Family Law Code § 4320(l) 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.
(m)CA Family Law Code § 4320(m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4324.5 or 4325.
(n)CA Family Law Code § 4320(n) Any other factors the court determines are just and equitable.
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Section § 4321

Explanation

If a couple is getting a divorce or legally separating, the court might decide not to make one person pay spousal support to the other. This can happen if the person asking for support already has their own property, can support themselves financially, or if there is enough shared property to cover their needs. It can also occur if the other spouse is taking care of the children.

In a judgment of dissolution of marriage or legal separation of the parties, the court may deny support to a party out of the separate property of the other party in any of the following circumstances:
(a)CA Family Law Code § 4321(a) The party has separate property, or is earning the party’s own livelihood, or there is community property or quasi-community property sufficient to give the party proper support.
(b)CA Family Law Code § 4321(b) The custody of the children has been awarded to the other party, who is supporting them.
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Section § 4322

Explanation

If you're going through a divorce or changing an existing support order, and there are no children involved, the court won't require one ex-spouse to pay support to the other if that person can support themselves with their own income or assets.

In an original or modification proceeding, where there are no children, and a party has or acquires a separate estate, including income from employment, sufficient for the party’s proper support, no support shall be ordered or continued against the other party.
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Section § 4323

Explanation

If someone receiving spousal support starts living with a new partner, it's assumed they need less financial support, unless proven otherwise. This doesn't require them to pretend they're married to this new partner. If things change, the court can adjust the support amount. Also, the new spouse's income of the person who pays support doesn't count when figuring out or changing the support amount. Finally, changes in circumstances can always lead to spousal support being modified or stopped.

(a)Copy CA Family Law Code § 4323(a)
(1)Copy CA Family Law Code § 4323(a)(1) Except as otherwise agreed to by the parties in writing, there is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabiting with a nonmarital partner. Upon a determination that circumstances have changed, the court may modify or terminate the spousal support as provided for in Chapter 6 (commencing with Section 3650) of Part 1.
(2)CA Family Law Code § 4323(a)(2) Holding oneself out to be the spouse of the person with whom one is cohabiting is not necessary to constitute cohabitation as the term is used in this subdivision.
(b)CA Family Law Code § 4323(b) The income of a supporting spouse’s subsequent spouse or nonmarital partner shall not be considered when determining or modifying spousal support.
(c)CA Family Law Code § 4323(c) Nothing in this section precludes later modification or termination of spousal support on proof of change of circumstances.
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Section § 4324

Explanation

If one spouse is convicted of trying to kill or hiring someone to kill the other spouse, the victim doesn't have to pay the convicted spouse any spousal support or provide any insurance benefits. 'Injured spouse' refers to the person who was targeted, regardless of whether they were hurt.

In addition to any other remedy authorized by law, when a spouse is convicted of attempting to murder the other spouse, as punishable pursuant to subdivision (a) of Section 664 of the Penal Code, or of soliciting the murder of the other spouse, as punishable pursuant to subdivision (b) of Section 653f of the Penal Code, the injured spouse shall be entitled to a prohibition of any temporary or permanent award for spousal support or medical, life, or other insurance benefits or payments from the injured spouse to the other spouse.
As used in this section, “injured spouse” means the spouse who has been the subject of the attempted murder or the solicitation of murder for which the other spouse was convicted, whether or not actual physical injury occurred.
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Section § 4324.5

Explanation

If one spouse gets convicted of a violent sexual or domestic violence felony against the other, and the divorce is filed within five years of that conviction, certain rules apply. The injured spouse won't have to pay spousal support to the convicted spouse. If the financial situation justifies it, any legal fees should be paid from shared community assets, not the injured spouse's separate property. The injured spouse can have the separation date set as the date of the violent incident and can claim full rights to their retirement accounts. However, if the convicted spouse can show they were also a victim of similar violence by the injured spouse, the court might not apply these rules. These changes apply only to convictions after January 1, 2019.

(a)CA Family Law Code § 4324.5(a) In any proceeding for dissolution of marriage where there is a criminal conviction for a violent sexual felony or a domestic violence felony perpetrated by one spouse against the other spouse and the petition for dissolution is filed before five years following the conviction and any time served in custody, on probation, or on parole, the following shall apply:
(1)CA Family Law Code § 4324.5(a)(1) An award of spousal support to the convicted spouse from the injured spouse is prohibited.
(2)CA Family Law Code § 4324.5(a)(2) If economic circumstances warrant, the court shall order the attorney’s fees and costs incurred by the parties to be paid from the community assets. The injured spouse shall not be required to pay any attorney’s fees of the convicted spouse out of the injured spouse’s separate property.
(3)CA Family Law Code § 4324.5(a)(3) At the request of the injured spouse, the date of separation, as defined in Section 70, shall be the date of the incident giving rise to the conviction, or earlier, if the court finds circumstances that justify an earlier date.
(4)CA Family Law Code § 4324.5(a)(4) The injured spouse shall be entitled to 100 percent of the community property interest in the retirement and pension benefits of the injured spouse.
(b)CA Family Law Code § 4324.5(b) As used in this section, the following definitions apply:
(1)CA Family Law Code § 4324.5(b)(1) “Domestic violence felony” means a felony offense for an act of abuse, as described in Section 6203, perpetrated by one spouse against the other spouse.
(2)CA Family Law Code § 4324.5(b)(2) “Injured spouse” means the spouse who has been the subject of the violent sexual felony or domestic violence felony for which the other spouse was convicted.
(3)CA Family Law Code § 4324.5(b)(3) “Violent sexual felony” means those offenses described in paragraphs (3), (4), (5), (11), and (18) of subdivision (c) of Section 667.5 of the Penal Code.
(c)CA Family Law Code § 4324.5(c) If a convicted spouse presents documented evidence of the convicted spouse’s history as a victim of a violent sexual offense, as described in paragraphs (3), (4), (5), (11), and (18) of subdivision (c) of Section 667.5 of the Penal Code, or domestic violence, as defined in Section 6211, perpetrated by the other spouse, the court may determine, based on the facts of the particular case, that one or more of paragraphs (1) to (4), inclusive, of subdivision (a) do not apply.
(d)CA Family Law Code § 4324.5(d) The changes made to this section by the bill that added this subdivision shall only apply to convictions that occur on or after January 1, 2019.
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Section § 4325

Explanation

This law outlines what happens in a divorce when one spouse has been criminally convicted of domestic violence against the other within the past five years or during the divorce process. Primarily, the convicted spouse is generally not allowed to receive spousal support from the injured spouse. The court can order attorney's fees to be paid from shared assets, but not from the injured spouse's separate property. If requested, the separation date can be set to the date of the violence or earlier if justified. A presumption that these rules apply can be challenged with enough evidence. The court can award the injured spouse up to all of the community property interest in retirement benefits, considering various factors like the length of the marriage and domestic violence history. The law defines what counts as a domestic violence misdemeanor and specifies that updates apply to convictions after January 1, 2019.

(a)CA Family Law Code § 4325(a) In a proceeding for dissolution of marriage where there is a criminal conviction for a domestic violence misdemeanor or a criminal conviction for a misdemeanor that results in a term of probation pursuant to Section 1203.097 of the Penal Code perpetrated by one spouse against the other spouse entered by the court within five years prior to the filing of the dissolution proceeding or during the course of the dissolution proceeding, there shall be a rebuttable presumption that the following shall apply:
(1)CA Family Law Code § 4325(a)(1) An award of spousal support to the convicted spouse from the injured spouse is prohibited.
(2)CA Family Law Code § 4325(a)(2) If economic circumstances warrant, the court shall order the attorney’s fees and costs incurred by the parties to be paid from the community assets. The injured spouse shall not be required to pay any attorney’s fees of the convicted spouse out of the injured spouse’s separate property.
(3)CA Family Law Code § 4325(a)(3) At the request of the injured spouse, the date of separation, as defined in Section 70, shall be the date of the incident giving rise to the conviction, or earlier, if the court finds circumstances that justify an earlier date.
(b)CA Family Law Code § 4325(b) The court may consider documented evidence of a convicted spouse’s history as a victim of domestic violence, as defined in Section 6211, perpetrated by the other spouse, or any other factors the court deems just and equitable, as conditions for rebutting this presumption.
(c)CA Family Law Code § 4325(c) The rebuttable presumption created in this section may be rebutted by a preponderance of the evidence.
(d)CA Family Law Code § 4325(d) The court may determine, based on the facts of a particular case, that the injured spouse is entitled to up to 100 percent of the community property interest in the injured spouse’s retirement and pension benefits. In determining whether and how to apportion the community property interest in the retirement and pension benefits of the injured spouse, the court shall consider all of the following factors:
(1)CA Family Law Code § 4325(d)(1) The misdemeanor domestic violence conviction, as well as documented evidence of other instances of domestic violence, as defined in Section 6211, between the parties or perpetrated by either party against either party’s child, including, but not limited to, consideration of emotional distress resulting from domestic violence. The court shall also consider documented evidence of a convicted spouse’s history as a victim of domestic violence, as defined in Section 6211, perpetrated by the other spouse.
(2)CA Family Law Code § 4325(d)(2) The duration of the marriage and when, based on documented evidence, incidents of domestic violence, as defined in Section 6211, occurred.
(3)CA Family Law Code § 4325(d)(3) The extent to which the convicted spouse’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the convicted spouse to devote time to domestic duties.
(4)CA Family Law Code § 4325(d)(4) The extent to which the convicted spouse contributed to the attainment of an education, training, a career position, or a license by the injured spouse.
(5)CA Family Law Code § 4325(d)(5) The balance of the hardships to each party.
(6)CA Family Law Code § 4325(d)(6) Any other factors the court determines are just and equitable.
(e)CA Family Law Code § 4325(e) As used in this section, the following definitions apply:
(1)CA Family Law Code § 4325(e)(1) “Domestic violence misdemeanor” means a misdemeanor offense for an act of abuse, as described in paragraphs (1) to (3), inclusive, of subdivision (a) of Section 6203, perpetrated by one spouse against the other spouse.
(2)CA Family Law Code § 4325(e)(2) “Injured spouse” means the spouse who has been the subject of the domestic violence misdemeanor for which the other spouse was convicted.
(f)CA Family Law Code § 4325(f) The changes made to this section by the bill that added this subdivision shall only apply to convictions that occur on or after January 1, 2019.
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Section § 4326

Explanation

If there's a spousal support order and a connected child support order ends, this change lets either person ask to change the spousal support. They need to do this within six months after child support ends. But, if there was a special agreement in place, or if spousal support can't be changed or has been waived, the situation doesn't change when child support ends. If you missed the deadline to file for a change because it was between January and September 2014, there was an extra chance to file until the end of that year.

(a)CA Family Law Code § 4326(a) Except as provided in subdivision (d), in a proceeding in which a spousal support order exists or in which the court has retained jurisdiction over a spousal support order, if a companion child support order is in effect, the termination of child support pursuant to subdivision (a) of Section 3901 constitutes a change of circumstances that may be the basis for a request by either party for modification of spousal support.
(b)CA Family Law Code § 4326(b) A motion to modify spousal support based on the change of circumstances described in subdivision (a) shall be filed by either party no later than six months from the date the child support order terminates.
(c)CA Family Law Code § 4326(c) If a motion to modify a spousal support order pursuant to subdivision (a) is filed, either party may request the appointment of a vocational training counselor pursuant to Section 4331.
(d)CA Family Law Code § 4326(d) Notwithstanding subdivision (a), termination of the child support order does not constitute a change of circumstances under subdivision (a) in any of the following circumstances:
(1)CA Family Law Code § 4326(d)(1) The child and spousal support orders are the result of a marital settlement agreement or judgment and the marital settlement agreement or judgment contains a provision regarding what is to occur when the child support order terminates.
(2)CA Family Law Code § 4326(d)(2) The child and spousal support orders are the result of a marital settlement agreement or judgment, which 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.
(3)CA Family Law Code § 4326(d)(3) The court’s jurisdiction over spousal support was previously terminated.
(e)CA Family Law Code § 4326(e) Notwithstanding subdivision (b), a party whose six-month deadline to file expired between January 1, 2014, and September 30, 2014, may file a motion pursuant to this section until December 31, 2014.
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