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Spousal support is one of the most complex and least-understood areas of family law. To begin, there’s no formula for permanent spousal support as there is for child support. Rather, California law creates a multi-factored inquiry to guide spousal support orders leaving attorneys with wide-latitude in negotiations. Moreover, permanent spousal support is not automatic in divorce. Due to the wide range of potential outcomes in contested spousal support proceedings, it’s critical to retain an experienced spousal support attorney.
Is Permanent Spousal Support Really Permanent?
Spousal support is granted by the court with the goal of maintaining the spouse in a lifestyle close to the standard of living that they enjoyed during the marriage, with the goal of allowing them time to become reasonably self-supporting after divorce.
Permanent spousal support is only granted by a court in a final judgment of legal separation or dissolution of a marriage, and it supersedes any order of temporary spousal support that may have been issued pending the legal proceedings.
It is “permanent” in the sense that it does not terminate in the same way that a temporary spousal support order automatically terminates at the resolution of the legal proceedings for divorce or dissolution.
By contrast, there is no predetermined “automatic” date of termination for a permanent spousal support order. That does not mean, however, that a permanent spousal support order cannot be modified or terminated at a later date.
Short Marriages are not entitled to permanent spousal support
Courts have set a benchmark of ten years for differentiating between short-term and long-term marriages. That is, marriages that lasted less than ten years are considered short-term marriages, and marriages that lasted ten years or more are considered long-term marriages.
Permanent spousal support is only granted to parties who have been in a long-term marriage.
The presumption is that those seeking spousal support, and who have been in a long-term marriage would have devoted more years of their life to the family and to the marriage to the extent that they might no longer have marketable skills to enable them to successfully or productively re-enter the workforce.
For short-term marriages, on the other hand, the period of “rehabilitation” during which spousal support is awarded is predefined – no more than half of the length of the marriage.
So, while it is true that one spouse may have devoted himself or herself to the marriage and the family to the extent of giving up his or her career, spousal support can be granted, but in no instance for a period of time longer than half of the duration of the marriage. For example, if you have been married for eight years and you are granted spousal support, the order for support should not exceed a period of four years.
Courts Reserve the Right to Modify or Terminate Permanent Spousal Support Orders
A permanent spousal support order is not so much “permanent” as it is open-ended. What courts usually do is they retain jurisdiction and reserve the right to modify or terminate the order for permanent spousal support later on.
Such an order does not expire or terminate by itself; a party has to petition the court to modify or terminate the support order, and then allege factual evidence to justify the modification or termination.
Some of the grounds that a party can allege include:
- A material change in circumstances that warrant the modification or termination of the spousal award. For instance: the supported party is no longer in need of support, or the supporting party has a significant decrease in income.
- Imputation of income, or where a party is capable of earning certain income based on his or her earning capacity, but intentionally refuses to work or remains unemployed or underemployed in order to keep receiving or to avoid paying spousal support
Parties petitioning the court for a modification or termination of a spousal support order must keep in mind that any changes to a support order cannot be made retroactively. This means that the original order is valid until the court issues a judgment for its change, and you cannot go back in time to effectuate changes based on circumstances that may have taken place at an earlier date.
So, if you do have valid grounds to ask for a modification or termination of a spousal support order, it is best to consult a family law attorney and immediately and actively pursue your case. It isn’t a good idea to sit on your rights because an order modifying a spousal support order can only be enforced against future support payments, regardless of whether the change in circumstances started at an earlier date.