There is a common misconception that when a couple divorces after more than 10 years of marriage, spousal support will be paid indefinitely. That is not correct. There are about 16 factors the court is required to consider in determining the amount and duration of spousal support to be awarded. The court has very broad discretion in making this determination, thus 10 different judges will likely have 10 different determinations when it comes to long-term spousal support.
A marriage of 10 years or longer is presumed to be a marriage of “long term”. In such cases, spousal support is more likely to be ordered if the higher income earning spouse is employed or has passive income such as from investments or rental properties. And there is usually a duty to seek full-time employment, according to one’s ability and the availability of work until reaching the lawful age of retirement of 65.
California Family Code 4320 Factors Include, But are Not Limited to:
- The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage;
- The marketable skills of the supported party;
- The job market for those skills;
- The time and expense 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 more marketable skills or employment;
- The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment, which were incurred during the marriage to permit the supported party to devote time to domestic duties;
- 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; and
- The age and health of the parties
In addition, in most cases a supporting spouse cannot simply decide to retire early, work part time, or change to a different career that pays less. Typically, the court will require the supporting spouse to maintain employment in accordance with their abilities and the availability of such work until the legal or typical age of retirement for that trade or profession, which is usually age 65. Spousal support also automatically terminates upon the re-marriage of the supported party, or death of the supporting party (unless the parties have agreed otherwise).
Another urban legend is that “Permanent Spousal Support” awarded by the court in a final Judgment (“divorce decree”) can never be modified. The reason for this misconception is due to the improper interpretation of the term.
“Permanent Spousal Support” really means the spousal support orders the court makes through trial or agreement of the parties as part of their final divorce decree. However, the courts generally maintain jurisdiction over the issue of the duration and amount of support. As such, the court can modify spousal support if there is a material change in circumstances, such as a significant increase or decrease in income, or a material decrease in the supported party’s expenses (e.g., due to inheriting a fully paid for house or co-habitation with a significant other).
In general, a supported party has a duty to seek gainful employment according to their ability and the availability of such work. A party also generally has the duty to contribute to their own support, the support of any minor children of the relationship, and to attempt to become self-supporting. However, the court will consider California Family Code factors. For example, a spouse may not be expected to work if they devote their time to care for young children, or if they go back to school to work on developing skills for a higher paying career.
As an example, it is unlikely a judge would expect a 60-year-old homemaker to suddenly become self-supporting at a standard of living commensurate with what had existed during the marriage. However, if healthy and able, the court might expect such a party to at least get a minimum wage job to contribute to their own support.
Some Common Misunderstandings
There is a misconception that the party who is already receiving support must prove, at some point in the future, that they still need support. However, it is actually the payor of support who must bring a motion to decrease or terminate support, and who has the initial burden to prove that support should be decreased or eliminated.
Often parties will create a buyout of support, waive support, or set a termination date within the parties’ Marital Settlement Agreement. By doing this, the parties can terminate the court’s jurisdiction beyond a date certain where support can no longer be revisited or modified by the court. Thus, one can negotiate to place language in a Marital Settlement Agreement to negate the court’s ability to revisit the issue of support.
The Bottom Line
Ten years is an important milestone which may impact the court’s ability to revisit the issue of spousal support at a later date. But it is by no means a guarantee of indefinite support. There are many ways to negotiate and determine permanent spousal support, and this is one area of law where it makes sense to speak with an attorney to make sure you understand to what you are agreeing.