A prerequisite to modification or termination of spousal support is a material change of circumstances. Change of circumstances’ means a reduction or increase in the supporting spouse’s ability to pay and/or an increase or decrease in the supported spouse’s needs.  The trial court has broad discretion to decide whether to modify a spousal support order. In exercising that discretion, the court must consider the required factors set out in Family Code section 4320 (4320). The court has discretion as to the weight it gives to each factor, and then the ultimate decision as to amount and duration of spousal support rests within its broad discretion and will not be reversed on appeal absent an abuse of [its] discretion. Failure to weigh the 4320 factors is an abuse of discretion.

Under 4320, the family court is to consider: (1) “[t]he extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage” (§ 4320, subd. (a)); and (2) “[t]he needs of each party based on the standard of living established during the marriage” (§ 4320, subd. (d)). The marital standard of living is “a general description of the station in life the parties had achieved by the date of separation,” rather than a “mathematical standard.”

Spouses in California have a duty to support one another. Section 4320 states, “subject to this division, a person shall support the person’s spouse.” Spousal support is governed by statute. (FC § 4300-4360) In ordering spousal support, the court must consider and weigh the circumstances enumerated in 4320, and pursuant to 4330, determines the amount of support based on what is “just and reasonable, based on the standard of living established during the marriage.”

I just concluded a three-day evidentiary hearing with both parties at an advanced age. The trial court made a ruling at the conclusion of the trial that notwithstanding my client’s assets received during the marriage, spousal support is reasonable based on the facts of the case, including but not limited, to over three decades of marriage and the inability of my client to be employed. The other party subsequently filed a Request for Order to modify a recent spousal support order to have it be zero. The party did not succeed and was ordered to pay spousal support.


Marriage of McLain

By the time the dissolution was filed, the fact of that retirement and the income that they each had become part of the marital standard of living and the court reasoned, the wife would be thrown out of retirement. Moreover, the trial court expressly refused to give a Gavron Warning to the wife. It awarded her spousal support, and attorney fees.

No appellate decision has previously, squarely, addressed “the age factor” in issuing judgment spousal support orders based upon FC section 4320, although many cases have circled around it. Subsection (h) of 4320 requires trial courts to consider “the age and health of the parties” and subsection (l) the relative circumstances of the parties. Subsection (l) also gives trial courts discretion to address “any other factors the court determines are just and equitable.”

The court highlighted the tension between those subparts of 4320 and the goal of California that support spouses become self-supporting can arise, given the relative ages of the parties. The court viewed the question as, “can the family court determine that a supported spouse being of retirement ago outweighs the ‘self-supporting’ factor”?

The McLain trial court declined to impute income to Wife because (a) there was no evidence she had an income; (b) there was no evidence of jobs available to her; (c) she was retired; and (d) she had a right to remain retired. “The court’s decision of Wife being retired reflects the court taking into account ‘the station in life that the parties had achieved,’ i.e., that they were both retired.”


Marriage of Dick

The trial court made specific and unequivocal finding that the husband has the “ability to pay” based on “extensive assets and non-salary income at his disposal.


Marriage of Schleich

Husband argued that the trial court erred by awarding Wife permanent spousal support since he had no ability to pay. The justices in Schleich pointed out that the trial court recognized Husband’s “entrepreneurial talent,” his industry contracts and business savvy, and his skills and experience which all added up to an ability to be gainfully employed without a doubt.” Moreover, the justices said although Charles had in the past “favored dealing in cash” and investing with an eye toward lowering his support obligation, his income from investments and assets should yield sufficient funds to pay his spousal support obligation.”


Marriage of Cheriton

The court similarly concluded in Schleich that the husband’s professional skills and entrepreneurial abilities, his cash dealings and his shifty handling of assets all led to the court’s finding that his  “skills and experience demonstrate that he has the ability to be gainfully employed in the future, that Husband “could sustain a living through self-employment,” and there was no “significant impediment to [Husband’s] ability to pursue self-employment opportunities[.] The court further found that he will receive income from investments and assets and noted the all-purpose family court judge’s earlier finding that the husband was not investing in good faith but was attempting to avoid spousal support obligations. The court held that he also favored dealing in cash and it had “obvious concerns about the accuracy of [Husband’s] financial accounting and the ability to trace/identify his assets in order to make a reasoned determination of his ability to pay support.”

But the court based its finding on more than the income that could be imputed to husband’s assets. In addition to husband’s known assets, the court underscored his demonstrable work history that provided for the parties’ “high standard of living” during marriage, and his ability to earn a gainful living through self-employment. The trial court was not found to have abused its discretion giving those speculative arguments little weight, particularly considering the husband’s professional skills and entrepreneurial abilities, his cash dealings, and his shifty handling of assets.

The  4320 analysis conducted by the court is fact intensive and gathering up the relevant evidence, witnesses, and critical information for the court is an overwhelming challenge. As in all hearings before the court, an efficient and effective case must be presented to the trial court.

Any inquiries, you can email me at [email protected] or call my office at 310-601-7144.

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