Modifying a Spousal Support Order in California
The award of spousal support (alimony) after a California divorce is an effort to balance the former spouse's income that is consistent with their standard of living during the marriage. Still, some factors could require a change in the spousal support order.
Under the law, there are legal requirements for modifying spousal support orders. For example, California Family Code 3603 says, “An order made pursuant to this chapter may be modified or terminated at any time except as to an amount that accrued before the date of the filing of the notice of motion or order to show cause to modify or terminate.”
California Family Code 3651(c) (1) says, “…. a support order may not be modified or terminated as to an amount that accrued before the date of the filing of the notice of motion or order to show cause to modify or terminate.”
Simply put, family laws in California state that temporary and long-term spousal support awards and agreements can be modified when support is scheduled to be paid except if they have signed a written stipulation and agreed otherwise.
Notably, in long-term marriages of ten years or longer, unless otherwise stated, the court automatically retains jurisdiction indefinitely over the issue of spousal support. This means they can modify an alimony order at any time, including terminating it based on changed circumstances.
California Family Code Sections 3590-3593 give a family court the legal authority to modify spousal support agreements.
A spousal support modification does not apply to any amounts accrued before filing the motion to terminate or modify. For example, suppose the spouses made a prior agreement in court that the spousal support order can't be altered or revoked. In that case, the court cannot change the order.
When is a Spousal Support Order Not Modifiable?
A California family court has no authority to modify an out-of-state spousal support order if other state has exclusive jurisdiction over the order under its laws. Likewise, other states can't modify a California spousal support order as long California maintains jurisdiction over the current order.
Further, a spousal support order by an agreement can't be modified. California Family Code Section 3651(d) says, “An order for spousal support may not be modified or terminated to the extent that a written agreement or, if there is no written agreement, an oral agreement entered into in open court between the parties, specifically provides that the spousal support is not subject to modification or termination.”
In other words, this law permits the spouses to voluntarily make a spousal support order non-modifiable by a written or oral agreement in open court, which would expressly state in writing that the spousal support cannot be modified or terminated.
Spousal support also can't be modified when the order specifies a fixed duration. Sometimes, there is an agreement to pay alimony for a fixed period. Once that period expires, the court no longer has jurisdiction to extend support.
What Are the Factors for Spousal Support Modification?
Whether you have temporary spousal support orders while your divorce is pending or you already have a final divorce judgment with support orders, there might be a situation when you will need to change the spousal support amount.
Modifying support orders could be highly complex, sometimes even more difficult than obtaining initial orders.
Unless your prior support order states that spousal support is waived or the order is non-modifiable, you can ask the court to change spousal support if there has been a substantial change in circumstance. The most common changes that could warrant a modification of support involve the following:
- Decrease in income for the spouse paying support, such as due to unemployment, job change, retirement, or disability;
- Increased income for the spouse receiving support, such as due to changes in employment, inheritance, lottery winnings, etc.
- Loss of child support payments, usually due to the child turning 18;
- When the supported spouse gets remarried, the spousal support order will automatically terminate;
- Cohabitation with a romantic partner. When the supported spouse cohabitates with a romantic companion, a rebuttable presumption decreases the burden of proof about the need for alimony;
- If the paying spouse retires or stops working, this change in circumstance could be sufficient to decrease or terminate spousal support. Likewise, the court can't order someone who is the age of 65 or older to keep working to pay alimony;
- If the paying spouse is required to deal with marital debt that was discharged in bankruptcy by the other spouse, the court can consider it a substantial change in their economic status and reduce or terminate spousal support;
- Separate estate of the supported spouse. Family Code 4322 says that if the supported spouse has no minor children and acquires a separate estate, including income from employment, the court has to grant a motion to terminate spousal support.
There are other reasons that the court would consider, the analysis depends on specific facts of your case, and it is essential to consult with an experienced family law attorney to determine if support modification is possible in your situation.
What Are the Factors to Determine a Change in Circumstances?
California Family Code 4320 covers several factors the court must consider when potentially modifying an existing spousal support order, such as the following:
- Both spouse's financial ability to maintain the marital standard of living;
- Marketable skills of the receiving spouse and the job market;
- Extent to which the receiving spouse's earning capacity was impaired by periods of unemployment for domestic duties;
- Extent to which the receiving spouse contributed to the other spouse's earning ability through education, training, career position, or license during the marriage;
- Ability of the paying spouse to pay spousal support based on present earning capacity, assets, cash flow, the standard of living, earning ability, and earned and unearned income;
- Each spouse's needs are based on their standard of living during the marriage, meaning the type of life they lived while married;
- Spouse's obligations and assets, including the separate property;
- Duration of marriage affects the need for support and the amount and duration of spousal support;
- Employment ability of the primary custodial spouse and the impact it could have on their children;
- Age and health of both spouses, as this could impact whether a court will continue or terminate a spousal support order;
- Any documented history of domestic violence, as defined in Section 6211, between spouses or against their children;
- Any spousal abuse conviction as there is a presumption in Family Code 4325 that spousal support is not awarded to an abusive spouse;
- Tax consequences as spousal support is a tax deduction for the paying spouse and taxable income for receiving spouse;
- The balance of hardships for each spouse;
- The supported spouse's intent to be self-supporting within a reasonable period, which is usually one-half the length of the marriage, except in marriages of ten years or longer;
- Any other factors the family court determines are just and equitable.
How Can You Increase Spousal Support?
The most common reason to ask for increased spousal support is if your spouse's income increases. For example, if you discovered your spouse received a promotion or changed to a higher-paying job.
Another reason to ask for increased support is if your income decreased significantly through no fault of your own. This could include a job loss, mainly due to illness or disability. Quitting a job or voluntarily reducing your income is not a reason to increase your spousal support.
You should consider such a request carefully, though, as asking for an increase in support also opens the door for your spouse to object to the increase or even ask for a reduction in support.
You must provide your income information by filling out an Income and Expense Declaration (Form FL-150). Your spouse will also be able to request your financial and employment records.
Before filing a request for an order to increase spousal support, it would be prudent to confirm the actual income of your spouse. This could be done by subpoenaing his employment and bank records.
However, this is only possible while your divorce case is still pending. If you want to request a modification post-judgment, you must request that your spouse share information on his income. If your spouse refuses to cooperate, it could be considered in any attorney fees or sanctions requests.
The judge will consider many factors defined under Family Code § 4320 in determining how much spousal support to order, and each case is different. For the court to consider an increase in spousal support, the receiving spouse must prove that either:
- The prior order was not enough money to meet their needs at that time;
- The reasonable cost of meeting those needs has increased.
If the receiving spouse can prove their claims, they must also prove that the paying spouse has the financial ability to pay increased support.
Consult an experienced family law attorney to decide if you should request increased spousal support and how the Family Code 4320 factors apply to your situation.
How Can You Decrease Spousal Support?
If you significantly change your financial circumstances, you can reduce your spousal support obligations.
Remember that if you voluntarily quit your job or change to a lower-paying job, your request to reduce support will probably be denied.
Retirement is a valid reason to request a reduction in spousal support, but only after age 65. Even if you can retire early, you will still be expected to maintain your employment income until you are 65.
When decreasing or terminating an existing spousal support order, the court must consider the relevant factors in California Family Code 4320. You need to understand that the passage of time, by itself, is not a sufficient reason for modifying an existing spousal support order.
However, the passage of time basis for support modification or termination can be used when it's consistent with the statutory goal that a receiving spouse become self-supporting within a reasonable period.
The spouse seeking to reduce or terminate an order must show a change in circumstances, such as:
- Losing their job,
- Reduction in income,
- Poor health, or
- Other relevant factors
Suppose a reduction in the paying spouse's income is the basis for the spousal support modification request. In that case, the court still holds the discretion to determine whether the reduction in revenue was under their control.
Simply put, the paying spouse cannot deliberately reduce their income or choose not to work and then ask the court for a reduction of spousal support. Suppose the family court believes the paying spouse could have prevented the income reduction. In that case, they will probably deny the modification request.
The court uses many factors listed in Family Code 4320 to determine the spousal support amount. You will need to show how those factors apply to your new circumstances.
What Are Some Reasons Why Modification Requests Are Denied?
Obtaining a modification of spousal support orders is often more complicated than getting the initial orders. There are many reasons the judge could deny such requests.
One such reason is related to the disclosure of income by the spouse asking for a support modification. If the judge decides that the spouse asking for a support change has not been truthful about their income, their request might be denied.
This could include failure to disclose a job, cash income, or inheritance. Common reasons judges deny requests for support modification include:
- The income of the spouse asking for an increase also increased;
- Spouse asking for support has not made sufficient efforts to obtain employment;
- The paying spouse's ability to pay decreased due to some extraordinary expenses;
- The paying spouse's total income has not changed, even though they received a salary increase as they lost overtime opportunities or bonuses;
- The asking spouse's need for support is now reduced due to their cohabitation with another partner;
- The asking spouse's reduction in income was voluntary.
There are many other reasons that the court would consider, the analysis depends on specific facts of your case, and it is essential to consult with an experienced Los Angeles divorce attorney to determine if support modification is possible in your situation.
If you want to modify a California spousal support order, contact our law firm for a free case evaluation by phone or the contact form.
What Is the Process for Modifying a California Spousal Support Order?
When a former spouse wants to modify a spousal support order, they must request an order in the same court that made the judgment.
The former spouse seeking the modification must personally serve the request for order on the other spouse party as defined under California Code of Civil Procedures Section 1005(b), which must occur at least 16 court days before the scheduled hearing.
Before the hearing, both sides must provide current financial information to the court for consideration. Then, during the hearing, both sides must present their case.
The paperwork both sides submit for filing must contain comprehensive declarations supporting their position, and the statements should be factual. The court has the discretion to allow testimonial evidence at the hearing.
If you want to modify a California spousal support order, contact Furman & Zavatsky for a free case evaluation by phone or the contact form.