Reducing spousal support is a common issue faced in family law, especially after a judgment has been entered. There are many considerations and circumstances that can affect the reduction in spousal support, it is important to speak with an attorney regarding your specific circumstances. This article is designed to cover some of the general and basic ways that spousal support can be modified, reduced, or terminated.
Before a final judgment is entered with the court, the court has the ability to order temporary spousal support while the divorce proceedings are pending before the court. The primary purpose of temproary support is to maintain the status quo while the divorce proceedings are carried out.
Although the court can consider the Family Code Section 4320 factors, temporary support is typically based on a computer program just like child support calculations. The 4320 factors are considered by the court in awarding permanent support and the Family Code does not allow utilization of the computer program for an award of permanent support.
When calculating temporary support, generally the last 12 months of income will be utilized to give a representative basis for an individual’s income. The court has discretion to consider other circumstances along with utilizing the computer program for a determination of the amount of temporary support. This is not typically done and requires a significant hardship or substantial reason for doing so.
POST JUDGMENT SUPPORT – Permanent Support
In determining permanent support the court considers the Family Code 4320 factors to reach a reasonable amount of spousal support payments. Many of the factors are intuitive, such as the standard of living of both spouses during the marriage, how long the marriage lasted, each spouse’s income and earning capacity. Some of the factors are broader and require more analysis such as: factors that the court deems just and equitable, balance of the hardships to each party, the goal that each spouse become self-supporting within a reasonable amount of time (typically 1/2 the length of the marriage).
Permanent support can be agreed to between the parties and incorporated into a judgment through a marital settlement agreement. There are many considerations in determining the amount of spousal support and this should be negotiated carefully. Some of the factors to consider are: when will support terminate, what constitutes a change in circumstances for modification of support, or will there be an event or occurrence that automatically reduces or terminates support? These can be incorporated into the agreement and should be carefully bargained for.
CHANGE IN CIRCUMSTANCES
A material change in circumstances must have occurred since the prior order for support in order to modify that order. It is important to consider that even if a spouse can demonstrate a material change in circumstances there is no guarantee that there will be a modification of the prior order. The following are examples that may satisfy the requirement for a material change in circumstances. It is important to speak with an attorney regarding your specific circumstances before requesting a modification of support based on a material change in circumstances.
REDUCTION OF INCOME OF PAYOR
Typically when the support payor is faced with a reduction of income, or more drastically loses employment, this can satisfy the change in circumstances requirement to modify support. A slight reduction in income may not satisfy the change in circumstances requirement, for temporary support modifications typically 10% or more of a reduction in income will be required for the court to view the reduction as a material change in circumstances.
INCREASE IN INCOME OF SUPPORTED SPOUSE
This can be tricky in post judgment proceedings because it can be difficult for ex spouses to find out exactly what the other has earned or is earning. An informal request for information about the other spouses income is ideal but often spouses do not want to provide the information as it can reduce their alimony payments. This information can be obtained with a request for an Income and Expense Declaration, and if there is a post judgment proceeding regarding a support modification pending before the court an Income and Expense Declaration must be filed prior to a hearing for modifying support.
COHABITATION OF SUPPORTED SPOUSE WITH NONMARITAL PARTNER
The California Family code provides that there is a presumption for decreased need for support if the supported spouse is cohabiting with a non marital partner. The California Family Code was amended and effective January 1, 2015 member of “opposite sex” was changed to “non marital partner” thereby including couples of same sex relationships that are cohabiting.