2 California Family Law Prac & Proc 2d ed. CHAPTER 50.

syn

California Family Law Prac & Proc 2nd ed. > CHAPTER 50 Duty to Support Spouse

CHAPTER 50 Duty to Support Spouse

PART A. TEXT

§ 50.01 Scope of Chapter

§ 50.02 Mutual Obligations of Support

§ 50.03 Marriage Requirement

[1] Nonmarital Cohabitants

[2] Void or Voidable Marriage

§ 50.04 Scope of Support Obligation

[1] Effect of Liability-of-Property Statutes

[2] Necessaries

§ 50.05 Waiver of Spousal Support Duty

[1] In General

[2] Agreements Executed Before 1986

[3] Agreements Executed Between 1986 and 2002

[4] Agreements Executed After 2001

§ 50.06 Duty of Spouses Living Together

§ 50.07 Duty of Spouses Living Apart

§ 50.08 Effect of Incompetence

§ 50.09 Effect of Dissolution or Legal Separation

[1] Duty of Support Continues

[2] On Ground of Permanent Legal Incapacity to Make Decisions

 Page 2 of 171
Synopsis to CHAPTER 50 : Duty to Support Spouse

§ 50.10 Effect of Death

[1] Right to Family Allowance

[2] Other Family Protection

§ 50.11 Enforcement of Support Obligation During Marriage

§ 50.12 Federal Duty to Support Sponsored Immigrant Spouse

§§ 50.13– [Reserved]

PART B. FORMS

§ 50.100 Petition to Enforce Spousal Duty of Support

[1] Comment

[2] Form

50.100 Petition to Enforce Spousal Duty of Support

§§ 50.101– [Reserved]

PART C. REFERENCES

§ 50.200 Legal Texts

§ 50.201 [Reserved]
California Family Law Prac & Proc 2d ed.
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 2 California Family Law Prac & Proc 2d ed. § 50.01

California Family Law Prac & Proc 2nd ed. > CHAPTER 50 Duty to Support Spouse > PART A. TEXT

§ 50.01 Scope of Chapter

This chapter discusses the general duty between spouses to support each other, including the effects of separation
and death on the duty. Spousal support orders in proceedings for dissolution of marriage or legal separation are
discussed in Chapter 51.

Actions to enforce the general duty of support are discussed in this chapter, and a form of petition is provided.
Enforcement of court orders for the payment of spousal support is considered in Chapter 141.

For a discussion of orders of attorney’s fees and costs, see Chapter 62, and for a discussion of child support, see
Chapters 40–42.

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document
 2 California Family Law Prac & Proc 2d ed. § 50.02

California Family Law Prac & Proc 2nd ed. > CHAPTER 50 Duty to Support Spouse > PART A. TEXT

§ 50.02 Mutual Obligations of Support

The marital relationship imposes a mutual duty of support on the spouses. 1 The obligation of support is an implicit
term of the marriage relationship and has been said to be as binding on the spouses as if an express avowal of the
obligation had been made.2

The legal duty is entirely gender-neutral; 3 distinctions in prior law between the duties of husband and wife were
eliminated in 1976.4

“Support” is broadly defined as a source or means of living; subsistence, sustenance, or living. In a broad sense, the
term includes all such means of living as would enable one to live in the degree of comfort suitable to his or her
station in life. It is said to include anything requisite to housing, feeding, clothing, health, proper recreation,
vacation, travel expenses, or other proper purposes. It includes proper care, nursing, and medical attendance in
sickness, and suitable burial at death. Thus, “support” is a general term used to describe a wide variety of types of
assistance designed to cover everyday living expenses, including medical care. 5

■ PRACTICE TIP:

There is very little guidance as to what constitutes “support” in an intact marriage. Modernly, we look to
the cases that address the appropriate level of spousal support, both temporary and permanent. These statutes
regarding support in an intact marriage were much more necessary many years ago when women had no
rights to control assets or income. The issue sometimes arises after shortly after separation when one spouse
is left without immediate resources to pay for the basic necessities, however, a prompt filing of a petition for
dissolution and a request for temporary spousal support remedies the immediate concerns. With the advent
of various proceedings under the Family Law Act of 1970, especially ex parte applications for immediate
relief, much of the difficulties have been alleviated. Commentary by Kathryn Kirkland

11 See Fam. Code §§ 720, 4300.

22 Boyd v. Boyd (1964) 228 Cal. App. 2d 374, 379.

33 See Orr v. Orr (1979) 440 U.S. 268, 280–283, 99 S. Ct. 1102, 59 L. Ed. 2d 306, 318–322 (Alabama statute that allowed wife, but not
husband, to receive alimony is unconstitutional).

44 See Stats. 1976, ch. 130, amending former Civ. Code § 242 and repealing former Civ. Code § 243 to eliminate gender-based distinctions.

55 In re Marriage of Benjamins (1994) 26 Cal. App. 4th 423, 429, 31 Cal. Rptr. 2d 313 (agreement to pay medical insurance premiums is one
for spousal support).
 Page 5 of 171
§ 50.02 Mutual Obligations of Support

California Family Law Prac & Proc 2d ed.

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 2 California Family Law Prac & Proc 2d ed. § 50.03

California Family Law Prac & Proc 2nd ed. > CHAPTER 50 Duty to Support Spouse > PART A. TEXT

§ 50.03 Marriage Requirement

[1] Nonmarital Cohabitants

Except as set forth in [2], below, there must be a valid marriage in order for there to be any obligation of
support.1 And, as there is no common-law marriage recognized in California, 2 there is no right to support
between unmarried cohabitants that arises merely from cohabitation or from the relationship. 3 However,
obligations in the nature of support between unmarried partners may be enforced under general principles of
contract law.4 For further discussion, see Chapters 1 and 2.

[2] Void or Voidable Marriage

During the pendency of a proceeding for nullity of marriage, or on judgment of nullity of marriage, the court
may order a party to pay for the support of the other party in the same manner as if the marriage had not been
void or voidable5 if the party for whose benefit the order is made is found to be a putative spouse. 6 A putative
spouse is a party to a void or voidable marriage who believed in good faith that the marriage was valid. 7 For
further discussion of nullity of marriage, see Chapter 12.
California Family Law Prac & Proc 2d ed.
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End of Document

11 See Hudson v. Hudson (1959) 52 Cal. 2d 735, 738, 344 P.2d 295.

22 See Marvin v. Marvin (1976) 18 Cal. 3d 660, 684 n.24, 134 Cal. Rptr. 815, 557 P.2d 106.

33 See Friedman v. Friedman (1993) 20 Cal. App. 4th 876, 883–890, 24 Cal. Rptr. 2d 892; but see Fam. Code § 308 (marriage contracted
outside California is valid in California if valid under laws where contracted); Colbert v. Colbert (1946) 28 Cal. 2d 276, 280, 169 P.2d 633
(support can be ordered for partner in common-law marriage valid under Texas law).

44 See Marvin v. Marvin (1976) 18 Cal. 3d 660, 667–685, 134 Cal. Rptr. 815, 557 P.2d 106.

55 See Fam. Code §§ 2200, 2201 (void marriages), 2210 (voidable marriage).

66 Fam. Code § 2254; see Fam. Code § 2010(d).

77 Fam. Code § 2251(a)(1).

 2 California Family Law Prac & Proc 2d ed. § 50.04

California Family Law Prac & Proc 2nd ed. > CHAPTER 50 Duty to Support Spouse > PART A. TEXT

§ 50.04 Scope of Support Obligation

[1] Effect of Liability-of-Property Statutes

Statutory rules regarding the liability of marital property, including community, quasi community, and separate
property, for debts incurred by a married person are set forth in Family Code Section 900 et seq. These rules are
primarily designed to define creditors’ rights against married persons and their property. However, these rules,
in effect, also serve to qualify the extent of the duty of support, both before and after the date of separation, as
defined in Family Code section 70.1 These matters are discussed in §§ 50.06 and 50.07. Spousal liability and the
liability of property for marital debts is discussed further in Chapter 23.

[2] Necessaries
The duty of support encompasses the obligation to pay the debts of the spouse, provided that the debts are for
“necessaries” of life.2 What is necessary is determined according to the parties’ station in life. 3
Necessaries of life have been found, in various cases, to include:
1. Food, habitation, medical treatment;4
2. Nursing services;5
3. Medical expenses of final illness and funeral expenses;6
4. Legal services.7
California Family Law Prac & Proc 2d ed.
Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

11 See Fam. Code § 914; see also Fam. Code § 4301 (qualifying duty of support by rules of § 914).

22 See Fam. Code § 914(a).

33 In re Marriage of Higgason (1973) 10 Cal. 3d 476, 488, 110 Cal. Rptr. 897, 516 P.2d 289.

44 Department of Mental Hygiene v. Kolts (1966) 247 Cal. App. 2d 154, 157, 55 Cal. Rptr. 437.

55 Davis v. Fyfe (1930) 107 Cal. App. 281, 284, 290 P. 468.
66 Odone v. Marzocchi (1949) 34 Cal. 2d 431, 439, 211 P.2d 297.

77 Stone v. Conkle (1939) 31 Cal. App. 2d 348, 351, 88 P.2d 197.

 2 California Family Law Prac & Proc 2d ed. § 50.05

California Family Law Prac & Proc 2nd ed. > CHAPTER 50 Duty to Support Spouse > PART A. TEXT

§ 50.05 Waiver of Spousal Support Duty

[1] In General
Except as otherwise provided by law, spouses cannot, by contract with each other, alter their legal relationships
during marriage, except as to property. 1 Although spouses cannot limit or waive their duty of support during
marriage and before separation, spouses may waive or limit post-separation spousal support.
Because the validity of a premarital agreement (PMA) must be determined according to the laws in effect at the
time the PMA was executed, the validity of a spousal support waiver depends, to a certain extent, on when the
PMA was executed.

[2] Agreements Executed Before 1986

Spousal support waivers in PMAs executed before the 1986 enactment of the Uniform Premarital Agreement
Act (UPAA) are always invalid, because spousal support waivers were void as against public policy prior to
enactment of the UPAA.2

[3] Agreements Executed Between 1986 and 2002

In 1986, the California legislature enacted the Uniform Premarital Agreement Act (UPAA), 3 which provides
that parties to a premarital agreement may contract on any matter “not in violation of public policy or a statute
imposing a criminal penalty.”4 In addition, under the UPAA, a PMA is not enforceable if the court finds that it
was “unconscionable when it was executed.” 5 Prior to its amendment in 2002, the UPAA did not mention
spousal support waivers.

In 2000, the California Supreme Court held that a premarital agreement containing a spousal support waiver
upon marital dissolution does not violate public policy and is not per se unenforceable, when the waiver is
executed by intelligent, well-educated persons, each of whom has the advice of counsel regarding his or her
rights and obligations as marital partners at the time they execute the waiver. 6 The Court only considered

11 Fam. Code § 1620.

22 In re Marriage of Melissa (2012) 212 Cal. App. 4th 598, 611; In re Marriage of Higgason (1973) 10 Cal. 3d 476, 516 P.2d 289.

33 Fam. Code § 1600 et seq.

44 Fam. Code § 1612(a)(7).

55 Fam. Code § 1615(a)(2).

66 In re Marriage of Pendleton & Fireman (2000) 24 Cal. 4th 39, 53–54, 99 Cal. Rptr. 2d 278, 5 P.3d 839. Compare In re Marriage of
Facter (2013) 212 Cal. App. 4th 967, 152 Cal. Rptr. 3d 79 (1994 waiver of support unconscionable when wife was unemployed high school
 Page 9 of 171
§ 50.05 Waiver of Spousal Support Duty

whether the agreement at issue was unfair at the time it was executed, and did not decide “whether
circumstances existing at the time enforcement of a waiver of spousal support is sought might make
enforcement unjust.”7 However, the Court reasoned that the legislative history of the UPAA indicated that the
Legislature “was satisfied with the evolution of the common law governing premarital waivers of spousal
support and intended to permit that evolution to continue.”8

Since Pendleton, several cases have held that a court may invalidate a spousal support waiver in a PMA
executed between 1986–2002 on the grounds that it is unconscionable at the time of enforcement. 9

[4] Agreements Executed After 2001

The Pendleton decision left open the question of whether circumstances existing at the time of a marital
dissolution might make enforcement of a premarital agreement containing a spousal support waiver unjust at
the time of enforcement.1010

In response, the Legislature amended California’s Uniform Premarital Agreement Act, operative January 1,
2002,1111 to provide that a provision in a premarital agreement relating to spousal support is unenforceable if (1)
the party against whom enforcement is sought was not represented by independent counsel at the time the
agreement was signed, or (2) if the spousal support provision is unconscionable at the time of enforcement.1212
Accordingly, a spousal support waiver in an agreement executed on or after January 1, 2002 is not
automatically enforceable when the party opposing the agreement was represented by counsel and the
agreement was fair and just when executed; rather, enforceability must be determined on a case-by-case
basis.1313 The 2002 amendments are not retroactive, and therefore do not apply to agreements executed before
January 1, 2002.1414 However, spousal support waivers in pre-2002, post-UPAA agreements have been struck
down on the grounds of unconscionability at the time of enforcement.1515

graduate and husband was wealthy attorney at time they entered into agreement).

77 In re Marriage of Pendleton & Fireman (2000) 24 Cal. 4th 39, 53, 99 Cal. Rptr. 2d 278, 5 P.3d 839.

88 In re Marriage of Pendleton & Fireman (2000) 24 Cal. 4th 39, 49, 99 Cal. Rptr. 2d 278, 5 P.3d 839.

99 In re Marriage of Zucker (2022) 75 Cal. App. 5th 1025, 291 Cal. Rptr. 3d 183 (provision in PMA capping husband’s spousal support
obligation at $6000/mo. was unconscionable when wife spent marriage raising parties’ six children and husband’s annual income was greater
than $3,000,000 at time of dissolution); In re Marriage of Facter (2013) 212 Cal. App. 4th 967, 152 Cal. Rptr. 3d 79.

1010 See In re Marriage of Miotke (2019) 35 Cal. App. 5th 849. (noting uncertainty whether spousal support waiver in pre-2002 agreement
that was not unconscionable at time it was executed could be unenforceable based on parties’ circumstances at time of enforcement).

1111 Fam. Code § 1600 et seq.

1212 Fam. Code § 1612(c); see also Fam. Code § 1615(c) (premarital agreement was not executed voluntarily unless party against whom
enforcement is sought was either represented by independent legal counsel or, after being advised to seek independent legal counsel, executed
express written waiver of representation by independent legal counsel).

1313 See Fam. Code § 1615(c); In re Marriage of Pendleton & Fireman (2000) 24 Cal. 4th 39, 53–54, 99 Cal. Rptr. 2d 278, 5 P.3d 839.

1414 In re Marriage of Howell (2011) 195 Cal. App. 4th 1062, 126 Cal. Rptr. 3d 539 (Family Code § 1612(c) does not apply retroactively); In
re Marriage of Hill & Dittmer (2011) 202 Cal. App. 4th 1046, 136 Cal. Rptr. 3d 700 (Family Code § 1615(c)(2) does not apply retroactively).

1515 In re Marriage of Zucker (2022) 75 Cal. App. 5th 1025, 291 Cal. Rptr. 3d 183; In re Marriage of Facter (2013) 212 Cal. App. 4th 967,
983–84, 152 Cal. Rptr. 3d 79.
 Page 10 of 171
§ 50.05 Waiver of Spousal Support Duty

For further discussion of premarital agreements and related forms, see Ch. 201.

Inheritance rights, including those in the nature of support such as a family allowance (see § 50.10[1]), may be
waived.1616 Also, spouses may agree to a waiver or limitation of support in a separation, property settlement, or
marital termination agreement.1717 For further discussion, see Ch. 51.
California Family Law Prac & Proc 2d ed.
Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

1616 See Estate of Wamack (1955) 137 Cal. App. 2d 112, 113–116, 289 P.2d 871.

1717 See Fam. Code § 3580; Patton v. Patton (1948) 32 Cal. 2d 520, 523, 196 P.2d 909.
 2 California Family Law Prac & Proc 2d ed. § 50.06

California Family Law Prac & Proc 2nd ed. > CHAPTER 50 Duty to Support Spouse > PART A. TEXT

§ 50.06 Duty of Spouses Living Together

Spouses must support each other while they are living together. Their community property, which, with certain
exceptions, is under the management and control of either spouse, 1 is primarily liable for this support. 2 But if there
is no community or quasi-community property, one spouse must support the other from his or her separate
property.3

■ PRACTICE TIP:

The phrase “living together” is not to be interpreted literally. It refers to the intact marriage, not
necessarily that the parties are under the same roof. Commentary by Kathryn Kirkland

However, liability of one spouse’s separate property for the debts of the other is limited to debts for which the
spouse is personally liable.4 The personal liability of a married person for the debts of the spouse while living
together is limited to debts incurred for necessaries of life.5

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

11 See Fam. Code §§ 1100, 1102; Ch. 24.

22 See Fam. Code § 910(a).

33 Fam. Code § 4301.

44 Fam. Code § 914(b); see Fam. Code § 913(b)(1).

55 Fam. Code § 914(a)(1); see § 50.04 [2].

 2 California Family Law Prac & Proc 2d ed. § 50.07

California Family Law Prac & Proc 2nd ed. > CHAPTER 50 Duty to Support Spouse > PART A. TEXT

§ 50.07 Duty of Spouses Living Apart

One spouse is not liable for the support of the other if they are living separately by agreement unless support is
stipulated in the agreement.1

If there is no agreement for support during separation, the duty is suspended, not terminated. Either party may
subsequently seek support in a legal proceeding to resolve the status of the marriage. 2 The reconciliation and the
resumption of cohabitation restores any duty of support that was suspended under the agreement. 3

There is no guidance in the statute and little in the cases as to what constitutes a sufficient agreement under Family
Code Section 4302.

■ PRACTICE TIP:

Modern case law has made it clear that after separation unless there is a written agreement between the
parties or a court order, there is no obligation for either spouse to support the other spouse. Commentary by
Kathryn Kirkland

For further discussion of the binding effect of agreements waiving support on the court in a dissolution of marriage
matter, see Chapter 51.

Under Family Code Section 4302, if there is no separation agreement, the duty of support continues for spouses not
living under the same roof.4 Further a spouse (and his or her separate property) remains liable for debts incurred by
the other for common necessaries of life after the date of separation. 5 Therefore, a unilateral abandonment has no
effect on the mutual duty of support.6

11 Fam. Code § 4302; see Fam. Code § 3580.

22 See London Guarantee & Acci. Co. v. Industrial Acci. Com. (1919) 181 Cal. 460, 466–467, 184 P. 864.
33 Lloyd Corp., Ltd. v. Ind. Acc. Com. (1943) 61 Cal. App. 2d 275, 279–280, 142 P.2d 754.

44 See In re Marriage of Epstein (1979) 24 Cal. 3d 76, 85–86 n.4, 154 Cal. Rptr. 413, 592 P.2d 1165.

55 Fam. Code § 914(a)(2), (b); see § 50.04[2].

66 See Estate of Hafner (1986) 184 Cal. App. 3d 1371, 1399, 229 Cal. Rptr. 676; but see Estate of Fulton (1936) 15 Cal. App. 2d 202, 204–
211, 59 P.2d 508 (holding, and surveying older line of cases holding, that spouse who abandons the other without cause forfeits right to
support from abandoned spouse).
 Page 13 of 171
§ 50.07 Duty of Spouses Living Apart

The community estate is not liable for debts incurred by either spouse after separation and before a judgment of
dissolution of marriage or legal separation.7

For illustrative forms of provisions regarding support on separation, see Chapters 51 and 214.

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

77 Fam. Code § 910(b).

 2 California Family Law Prac & Proc 2d ed. § 50.08

California Family Law Prac & Proc 2nd ed. > CHAPTER 50 Duty to Support Spouse > PART A. TEXT

§ 50.08 Effect of Incompetence

The duty to support one’s spouse does not end if the spouse has been adjudged insane or a conservator has been
appointed.1 This is true even if the incompetent spouse has an estate of their own. 2 Nor can the duty be terminated
by dissolution of marriage.3

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

11 Guardianship of Thrasher (1951) 105 Cal. App. 2d 768, 776, 234 P.2d 230.

22 Department of Mental Hygiene v. Kolts (1966) 247 Cal. App. 2d 154, 159, 55 Cal. Rptr. 437 ; Guardianship of Thrasher (1951) 105 Cal.
App. 2d 768, 776–778, 234 P.2d 230.

33 See Fam. Code § 2313; § 50.09[2].

 2 California Family Law Prac & Proc 2d ed. § 50.09

California Family Law Prac & Proc 2nd ed. > CHAPTER 50 Duty to Support Spouse > PART A. TEXT

§ 50.09 Effect of Dissolution or Legal Separation

[1] Duty of Support Continues

Except in the case of a permanent waiver in a pre-marital agreement, a post-marital agreement or a marital
separation agreement,1 the mutual duty of support is not terminated by legal proceedings for dissolution of
marriage or legal separation. In such a matter, the court may order either party to pay spousal support to the
other, during the pendency of the proceeding,2 and in the judgment.3 Spousal support in dissolution proceedings
is the subject of Chapter 51.

[2] On Ground of Permanent Legal Incapacity to Make Decisions

If a marriage is dissolved on the ground of a spouse’s permanent legal incapacity to make decisions, 4 the
judgment may not relieve a spouse from any obligation imposed by law as a result of the marriage for the
support of the spouse who no longer has the ability to make legal decisions. The court may make any order for
support, or require a bond therefor, as the circumstances require.5
If the spouse who no longer has the legal capacity to make decisions is committed to a state mental hospital or
developmental center and has no conservator of the estate, the superintendent of the hospital or center may
collect any money due or owing to the spouse, such as spousal support, not exceeding a specified amount to be
adjusted annually, and deposit it in the patient’s personal deposit fund. 6
California Family Law Prac & Proc 2d ed.
Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

11 See Fam. Code § 4302; § 50.07; ch. 214.

22 See Fam. Code § 3600.

33 Fam. Code § 4330.

44 See Fam. Code § 2310(b). Prior to January 1, 2015, the statute referred to this ground as “incurable insanity.”

55 Fam. Code § 2313.

66 Welf. & Inst. Code § 7289; see Welf. & Inst. Code §§ 7281, 7289.1.
 2 California Family Law Prac & Proc 2d ed. § 50.10

California Family Law Prac & Proc 2nd ed. > CHAPTER 50 Duty to Support Spouse > PART A. TEXT

§ 50.10 Effect of Death

[1] Right to Family Allowance

On the death of a married person, the surviving spouse may petition the court for a family allowance. 1 If the
allowance is granted, it is paid out of the decedent’s estate. 2 The allowance may be denied if the surviving
spouse has reasonable maintenance from other sources and there are other persons entitled to the allowance. 3
The family allowance is an extension of the decedent’s obligation of support. 4
The survivor’s right to the allowance requires that the marital relationship exist at the time of death. 5 Therefore,
dissolution of marriage before death terminates the survivor’s right to the allowance, even if the decedent is
under an order to pay spousal support. 6 Agreements continuing spousal support on the death of the supporting
party7 are discussed, and forms are provided, in Chapter 51.
The right to the allowance is also conditioned on whether or not the surviving spouse was entitled to support
from the decedent at the time of death. 8 The right is not automatically lost merely because the spouses were
living apart at the time of death. 9 Nor does it matter that the surviving spouse was not actually receiving
support.1010

11 Prob. Code § 6540(a)(1).

22 Prob. Code §§ 6540(a), 6544.

33 Prob. Code § 6540(c); see Estate of Wallace (1977) 74 Cal. App. 3d 196, 202, 141 Cal. Rptr. 426 (allowance may not be denied if spouse
has other sources of support unless other persons are also entitled to allowance).

44 Estate of Schumacher (1971) 18 Cal. App. 3d 146, 152, 95 Cal. Rptr. 572; see Fam. Code § 4337 (absent agreement to contrary, spousal
support order terminates on death of either party).

55 See Estate of Hafner (1986) 184 Cal. App. 3d 1371, 1396–1397, 229 Cal. Rptr. 676 (putative spouse may not claim allowance).

66 Estate of Casimir (1971) 19 Cal. App. 3d 773, 782–783, 97 Cal. Rptr. 623.

77 See Fam. Code § 4337.

88 Estate of Kalal (1981) 121 Cal. App. 3d 841, 847, 175 Cal. Rptr. 582.

99 Estate of Fallon (1957) 49 Cal. 2d 402, 404, 317 P.2d 963; see § 50.07.

1010 Estate of Hafner (1986) 184 Cal. App. 3d 1371, 1398–1399, 229 Cal. Rptr. 676.
 Page 17 of 171
§ 50.10 Effect of Death

The family allowance is strictly a creation of probate law, designed to provide support for the surviving spouse
during the pendency of probate proceedings. When there is no estate to be administered, such as when all assets
have been placed in a revocable trust before the decedent’s death, it is improper to award a family allowance. 1111
Similarly, standards that might apply in other types of proceedings are not determinative of whether the
allowance is proper. Factors to be considered in ordering spousal support in a dissolution matter, 1212 including
duration of the marriage, are irrelevant.1313

The right to a family allowance may be waived by agreement to that effect. 1414 And unlike other waivers of a
right to support (see § 50.05), the right to a family allowance may be waived in an antenuptial agreement. 1515 It
is not waived, however, simply by delay in petitioning for it.1616
It has also been said that a surviving spouse may lose the right to a family allowance by conduct. 1717 However,
cases standing for that proposition, all of which are from the era when marital fault was a factor in awarding
support, appear to actually involve the surviving spouse’s abandonment of the decedent under circumstances
that terminated the decedent’s duty to support. 1818 The better rule is that the court has no discretionary right to
withhold a family allowance to one who is statutorily entitled to it, although the amount and duration of the
allowance are within the discretion of the court.1919

For further discussion of the family allowance, see California Forms of Pleading and Practice, Ch. 440,
Probate, Pt. XI (Matthew Bender).

[2] Other Family Protection

If a married person dies, the surviving spouse may remain in possession of the family home until the filing of
the probate inventory and for 60 days thereafter, or for such other period as may be ordered by the court. 2020 The
surviving spouse may also petition to set aside property that is exempt from execution by creditors 2121 and
property for a probate homestead.2222
California Family Law Prac & Proc 2d ed.

1111 Parson v. Parson (1996) 49 Cal. App. 4th 537, 542, 56 Cal. Rptr. 2d 686 (disinherited surviving wife was not entitled to family
allowance).

1212 See Fam. Code § 4320; ch. 51.

1313 Estate of Wallace (1977) 74 Cal. App. 3d 196, 202–203, 141 Cal. Rptr. 426.

1414 Estate of Wiedemann (1964) 228 Cal. App. 2d 362, 367, 39 Cal. Rptr. 496.

1515 Estate of Wamack (1955) 137 Cal. App. 2d 112. 115–116. 289 P.2d 871.

1616 Estate of Secord (1948) 84 Cal. App. 2d 783, 785, 192 P.2d 81.

1717 See Estate of Brooks (1946) 28 Cal. 2d 748, 750, 171 P.2d 724.

1818 See, e.g., Estate of Fulton (1936) 15 Cal. App. 2d 202, 204, 59 P.2d 508.

1919 Estate of Secord (1948) 84 Cal. App. 2d 783, 785–786, 192 P.2d 81.

2020 Prob. Code § 6500.

2121 See Prob. Code § 6510.

2222 See Prob. Code § 6520 et seq.

 Page 18 of 171
§ 50.10 Effect of Death

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 2 California Family Law Prac & Proc 2d ed. § 50.11

California Family Law Prac & Proc 2nd ed. > CHAPTER 50 Duty to Support Spouse > PART A. TEXT

§ 50.11 Enforcement of Support Obligation During Marriage

One spouse may bring an action against the other to enforce the duty of support. 1 In such an action, support may be
ordered, despite the lack of express statutory provision authorizing it, under the court’s general equity power. 2 For
an illustrative petition in such an action, see § 50.100. If a county has furnished support to a married person, the
county has the same right to secure reimbursement and obtain continuing support. 3 A married person may also file
for a judgment of legal separation, in which spousal support may be ordered. 4

■ PRACTICE TIP:

Although this statute is still “on the books”, modernly, if a spouse in an intact marriage has no resources
and there are resources under the control of the other spouse, the more common remedy is a petition for
dissolution and an immediate request for temporary spousal support. Historically, this statute was for the
protection of wives whose husbands controlled all the financial resources of the marriage. Commentary by
Kathryn Kirkland

■ PRACTICE TIP:

If your client is on the receiving end of an action to enforce the duty of support, your client should
consider filing their own petition for dissolution of marriage or legal separation. Commentary by Janet
Frankel

In addition, there are criminal penalties for nonsupport. It is a misdemeanor for a married person to fail to provide
the necessary food, clothing, shelter, and medical attention for his or her spouse if he or she has the ability to

11 Fam. Code § 4303(a); see Galland v. Galland (1869) 38 Cal. 265, 268–272 (general equity power of court to order support).

22 Kilroy v. Kilroy (1995) 35 Cal. App. 4th 1141, 1144–1148, 41 Cal. Rptr. 2d 812.

33 Fam. Code § 4303(b).

44 Fam. Code § 4330.

 Page 20 of 171
§ 50.11 Enforcement of Support Obligation During Marriage

provide for support.5 If the defendant is convicted and a fine imposed, the fine may be ordered paid to the spouse of
the defendant.6

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

55 Penal Code § 270a.

66 Penal Code § 270d.

 2 California Family Law Prac & Proc 2d ed. § 50.12

California Family Law Prac & Proc 2nd ed. > CHAPTER 50 Duty to Support Spouse > PART A. TEXT

§ 50.12 Federal Duty to Support Sponsored Immigrant Spouse

The Immigration and Nationality Act forbids admission to the United States of any immigrant who “is likely at any
time to become a public charge.” 1 A person who sponsors an immigrant for admission must execute an affidavit of
support, agreeing to sponsor the alien at a level that is at least 125 percent of the federal poverty line. 2 This
provision applies to a United States citizen who sponsors an immigrant spouse.

The affidavit of support is enforceable by the sponsored immigrant spouse or any government agency or entity that
provides the immigrant spouse with means-tested benefits. 3 An immigrant spouse has standing to enforce the
support obligation created by an I-864 affidavit in dissolution proceedings in state court. 4 The affidavit is
enforceable until the immigrant spouse has worked 40 qualifying quarters of Social Security coverage or becomes a
U.S. citizen.5 All of the qualifying quarters worked by the sponsoring spouse during the marriage are credited to the
immigrant spouse, provided that the spouses remain married or the sponsoring spouse is deceased. 6

A sponsoring spouse’s duty to support the immigrant spouse continues after divorce, and is not excused by the
supported spouse’s failure to seek work or to otherwise mitigate his or her damages. 7 Therefore, a court order
limiting the supporting spouse’s obligation or requiring the supported spouse to become self-supporting does not
limit the supporting spouse’s duty to provide support under federal immigration law. 8

■ PRACTICE TIP:

This provision of the federal immigration law is generally not something family law attorneys are aware
of. California in recent years has seen a huge increase in the number of immigrant spouses and an equally
huge increase in dissolution proceedings involving immigrant spouses. It is very important to understand

11 8 U.S.C. § 1182(a)(4)(A); see also id., §§ 1601(2)(A), (5).

22 8 U.S.C. § 1183(a)(1)(A).

33 8 U.S.C. § 1183(a)(1)(B).

44 In re Marriage of Kumar (2017) 13 Cal. App. 5th 1072, 220 Cal. Rptr. 3d 863.

55 8 U.S.C. § 1183(a)(3)(A); see 42 USCS §§ 401 et seq.

66 8 U.S.C. § 1183(a)(3)(B).

77 In re Marriage of Kumar (2017) 13 Cal. App. 5th 1072, 220 Cal. Rptr. 3d 863; Liu v. Mund (7th Cir. 2012) 686 F. 3d 418.

88 In re Marriage of Kumar (2017) 13 Cal. App. 5th 1072, 220 Cal. Rptr. 3d 863; Liu v. Mund (7th Cir. 2012) 686 F. 3d 418.
 Page 22 of 171
§ 50.12 Federal Duty to Support Sponsored Immigrant Spouse

that no spousal support waiver in a dissolution proceeding by the immigrant spouse is effective to abrogate
the responsibility of the citizen-spouse under this federal statute. This must also be considered along with the
confidentiality of immigration status as stated in Evidence Code 351.3 which essentially makes a person’s
immigration status confidential in open Court. Commentary by Kathryn Kirkland and Sandra L. Mayberry

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document
 2 California Family Law Prac & Proc 2d ed. §§ 50.13–50.99

California Family Law Prac & Proc 2nd ed. > CHAPTER 50 Duty to Support Spouse > PART A. TEXT

§§ 50.13– 50.99 [Reserved]

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document
 2 California Family Law Prac & Proc 2d ed. § 50.100

California Family Law Prac & Proc 2nd ed. > CHAPTER 50 Duty to Support Spouse > PART B. FORMS

§ 50.100 Petition to Enforce Spousal Duty of Support

[1] Comment

The form in [2], below, is a verified1 petition under Family Code Section 4303 seeking support from a spouse.
There are no statutory requirements regarding the contents of such a petition. By reference to dissolution of
marriage matters, in which spousal support may be requested merely by checking a box, 2 it is probably
sufficient to allege the existence and validity of the marriage and the defendant’s failure or refusal to provide
support. Subject matter jurisdiction for all Family Code proceedings is in the superior court. 3 Pendente lite
support may be ordered under the court’s general equity powers,4 and should be prayed for.
All provisions of law applicable to civil actions generally apply to actions under the Family Code regardless of
nomenclature, if they would otherwise apply to the action. However, the action is commenced by the filing of a
petition (rather than complaint) and defended by filing an appropriate response (rather than answer) within 30
days after service on the respondent of the summons and a copy of the petition. 5 It should logically be assigned
to the family law department and heard on the family law calendar.

Section 4303 is derived from former Civil Code Section 248, a provision of the former Uniform Civil Liability
for Support Act. Its primary purpose is to allow a public entity that has provided public assistance to a married
adult to seek reimbursement from the person’s spouse. 6 The person entitled to support may also bring the
action, whether or not the parties have separated.7
With regard to spousal support, there is little, if any, functional difference between an obligee’s action under
Section 4303 and a proceeding for legal separation. A married person may obtain an order for spousal support

11 See Fam. Code § 212.

22 See Cal. Judicial Council Form FL-100 (Judicial Council form of Petition for Dissolution of Marriage).

33 Fam. Code § 200.

44 Kilroy v. Kilroy (1995) 35 Cal. App. 4th 1141, 1144–1148, 41 Cal. Rptr. 2d 812.

55 Cal. Rules of Ct., Rules 5.22 (eff. through Dec. 31, 2012), 5.2(e) (eff. Jan. 1, 2013); see also Fam. Code §§ 110 (“proceeding” under
Family Code includes action), 127 (“respondent” includes “defendant”).

66 See Fam. Code § 4303(b).

77 Fam. Code § 4303(a).

 Page 25 of 171
§ 50.100 Petition to Enforce Spousal Duty of Support

by either proceeding.8 Of course, in a legal separation, a party may obtain all other relief available in a
dissolution of marriage, such as child custody9 and child support orders,1010 and division of property.1111
For this reason, there is little need for the 4303 action, and it is seldom used today by private parties. However,
a legal separation involves entry of a judgment of legal separation, which, although of little or no legal
significance apart from the orders contained in it, might connote a certain finality of the relationship that the
person does not feel. Also, legal separation cannot be adjudged over the opposition of the respondent. 1212 The
Section 4303 action allows the court to issue a spousal support order without resolving issues related to the
status of the marriage, which the parties might not be ready to address.

■ PRACTICE TIP:

If a client is contemplating bringing a Section 4303 proceeding for the reasons stated above, counsel
should advise that there is nothing to stop the spouse from filing for dissolution of marriage or legal
separation. Commentary by Diana Richmond.

[2] Form

Petition to Enforce Spousal Duty of Support

SUPERIOR COURT OF CALIFORNIA,
COUNTY OF ______________________

[name] NO. ______________________

PETITION FOR SPOUSAL SUPPORT WITHOUT
Petitioner, DISSOLUTION OF MARRIAGE
[Fam. Code § 4303]
______________________ [name]

Respondent.

Petitioner alleges:
1. Petitioner ______________________ [name] is a resident of the State of California, County of
______________________.

88 See Fam. Code § 4330.

99 See Fam. Code § 3022.

1010 See Fam. Code § 4001.

1111 See Fam. Code § 2550.

1212 Fam. Code § 2345.

 Page 26 of 171
§ 50.100 Petition to Enforce Spousal Duty of Support

2. Respondent ______________________ [name] is a resident of the State of California, County of

______________________.
3. The action is brought under the authority of Family Code Section 4303.
4. Petitioner and respondent were married on ______________________ [date], and since that time have
remained spouses. No judgment of nullity of marriage, legal separation, or dissolution of marriage has been
entered, and no such proceedings are currently pending in any court of competent jurisdiction.
5. On ______________________ [date], defendant abandoned petitioner and ceased cohabitation. Since that
date, defendant has not provided petitioner with any support in any form from any source.
6. ______________________ [Set forth facts establishing petitioner’s need, e.g., Petitioner is disabled,
unemployed, and unable to support himself. Petitioner has, at all times during marriage, relied on respondent’s
community property earnings for her support].
7. No application for public assistance is currently pending.
WHEREFORE, Petitioner prays for judgment as follows:
1. For temporary and permanent orders requiring respondent to pay support to petitioner in such amounts and at
such times as the court deems proper under the standards of Family Code Section 4320;
2. For costs of suit incurred;
3. For attorney’s fees; and
4. For such other relief as the court deems proper.
______________________ [date]
[firm name, if any]
By: ______________________ [signature]
______________________ [typed name]
Attorney for Petitioner ______________________ [name]

VERIFICATION1313

I, ______________________ [name of petitioner], am the petitioner in this matter. I have read the foregoing
petition and know the contents thereof. The same is true of my own knowledge, except as to those matters
which are therein alleged on information and belief, and as to those matters, I believe them to be true.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
______________________ [date]

______________________ [signature]

______________________ [typed name]

California Family Law Prac & Proc 2d ed.
Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

1313 Code Civ. Proc. §§ 446, 2015.5.

 2 California Family Law Prac & Proc 2d ed. §§ 50.101–50.199

California Family Law Prac & Proc 2nd ed. > CHAPTER 50 Duty to Support Spouse > PART B. FORMS

§§ 50.101– 50.199 [Reserved]

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document
 2 California Family Law Prac & Proc 2d ed. § 50.200

California Family Law Prac & Proc 2nd ed. > CHAPTER 50 Duty to Support Spouse > PART C.
REFERENCES

§ 50.200 Legal Texts

Kirkland, Denner, Rothschild, CALIFORNIA FAMILY LAW LITIGATION GUIDE, Chapter 33, Spousal Support
(Matthew Bender).
CALIFORNIA FORMS OF PLEADING AND PRACTICE (Matthew Bender).
Ch. 220. Dissolution of Marriage and Related Proceedings, pt. I.
Ch. 440, Probate, pt. XI.
California Family Law Prac & Proc 2d ed.
Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document
 2 California Family Law Prac & Proc 2d ed. § 50.201

California Family Law Prac & Proc 2nd ed. > CHAPTER 50 Duty to Support Spouse > PART C.
REFERENCES

§ 50.201 [Reserved]

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document
 2 California Family Law Prac & Proc 2d ed. CHAPTER 51.syn

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders

CHAPTER 51 Spousal Support Orders

PART A. JURISDICTION AND OTHER GENERAL ISSUES

§ 51.01 Scope of Chapter

§ 51.02 Subject Matter Jurisdiction

[1] Proceedings in Which Spousal Support May Be Ordered

[2] Proper Court

§ 51.03 Personal Jurisdiction

§ 51.04 Relation Between Spousal Support and Community Property Rights

§ 51.05 Family Support

§§ 51.06– [Reserved]

PART B. TEMPORARY SUPPORT

§ 51.10 When Temporary Support Is Authorized; Retroactivity of Order

§ 51.11 Purpose of Order

§ 51.12 Standard for Making Order

§ 51.12A Domestic Violence

§ 51.13 Court Schedules and Computer Software

§ 51.14 Manner of Making Application

§ 51.15 Showing Required

[1] Need

[2] Ability to Pay

§ 51.16 Effect of Separate Estate

 Page 31 of 171
Synopsis to CHAPTER 51 : Spousal Support Orders

§ 51.17 Effect of Raising Certain Defenses

[1] Denial That Marriage Exists

[2] Waiver by Agreement

[3] Change of Venue

§ 51.18 Effect of Dismissal

§ 51.19 Effect of Reconciliation

§ 51.20 Renewal of Motion, Reconsideration, and Relief From Order

§ 51.21 Appealability of Order

[1] Order Granting Support

[2] Order Denying Support

§ 51.22 Temporary Support Pending Appeal

§ 51.23 Security for Payment of Temporary Support

§ 51.24 Modification and Revocation of Order

§§ 51.25–51.29 [Reserved]

PART C. POST-JUDGMENT SUPPORT

Subpart 1. Factors Affecting Post-judgment Support Orders

§ 51.30 Discretion of Court to Order Support

§ 51.31 Statutory Factors; Family Code Section 4320

§ 51.32 Standard of Living Established During Marriage

§ 51.33 Supporting Spouse’s Ability to Pay

[1] Computation of Income

[2] Earning Capacity

[3] Income of Subsequent Spouse or Partner

[4] Assets and Obligations

§ 51.34 Need and Earning Capacity of Supported Spouse

§ 51.35 Contributions to Education and Career

§ 51.36 Supported Spouse’s Assets and Obligations; Separate Estate

 Page 32 of 171
Synopsis to CHAPTER 51 : Spousal Support Orders

§ 51.37 Duration of Marriage

§ 51.38 Age and Health of Parties

§ 51.39 Support and Education of Adult Children

§ 51.40 Effect of Agreement Between Parties

§ 51.41 Examination by Vocational Training Counselor

§ 51.42 Discovery of Tax Returns

§ 51.43 Support Order in Default Judgment if Support Is Not Requested

§ 51.44 Domestic Violence and Violent Sexual Felonies

§ 51.45 Retroactivity of Order

§§ 51.46–51.49 [Reserved]

Subpart 2. Retention of Jurisdiction and Duration of Order

§ 51.50 Need to Address Retention of Jurisdiction in Order or Judgment

§ 51.51 Manner of Retaining Jurisdiction

[1] Long-Term Marriage Under Family Code Section 4336

[a] Express Language Not Required

[b] What Constitutes Marriage of Long Duration

[2] If Family Code Section 4336 Does Not Apply

§ 51.52 Jurisdiction to Extend Order Beyond Period of Express Limitation

[1] When Express Language Retaining Jurisdiction Is Required Under Family Code

[2] What Constitutes Language Sufficient to Retain Jurisdiction

[3] What Constitutes Language Sufficient to Terminate Jurisdiction

§ 51.53 When Court Should Retain Jurisdiction

[1] Factors to Be Considered

[2] Long-Term Marriage

[3] Short-Term Marriage

[4] Medium-Term Marriage

§§ 51.54 [Reserved]
 Page 33 of 171
Synopsis to CHAPTER 51 : Spousal Support Orders

Subpart 3. Nonmodification and Nontermination Agreements

§ 51.60 Agreement That Support Is Nonmodifiable

[1] Agreement Executed on or After January 1, 1970

[a] General Rule of Validity

[b] Language Required

[c] Interrelationship With Reservation of Jurisdiction

[2] Agreement Executed Before January 1, 1970

§ 51.61 Agreements Avoiding Termination by Operation of Law; Death, Remarriage, Cohabitation

§§ 51.62 [Reserved]

Subpart 4. Enforcement Provisions Issued With Order

§ 51.70 Earnings Assignment Order

§ 51.71 Security for Payment

§ 51.72 Payment to County Officer

§§ 51.73– [Reserved]

PART D. FORMS

Subpart 1. Preliminary Considerations

§ 51.100 Income and Expense Declaration—Judicial Council Form

[1] Comment

[a] Use of Form

[b] Income of Subsequent Spouse or Nonmarital Partner

[2] Form—Income and Expense Declaration

51.100 Income and Expense Declaration—Judicial Council Form

§ 51.101 Examination by Vocational Training Counselor

[1] Comment

[2] Form—Declaration in Support of Motion for Examination by Vocational Training

Counselor

51.101.1 Declaration in Support of Motion for Examination by Vocational Training

Counselor
 Page 34 of 171
Synopsis to CHAPTER 51 : Spousal Support Orders

[3] Form—Order Requiring Examination by Vocational Training Counselor

51.101.2 Order Requiring Examination by Vocational Training Counselor

§ 51.102 Spousal or Domestic Partner Support Declaration Attachment

[1] Comment

[2] Form

51.102 Spousal or Domestic Partner Support Declaration Attachment

§ 51.102A Spousal or Family Support Order Attachment to Findings and Order After Hearing, or
Judgment—Judicial Council Form

[1] Comment

[2] Form

51.102A Spousal or Family Support Order Attachment to Findings and Order After
Hearing, or Judgment—Judicial Council Form

§ 51.102B Spousal or Domestic Partner Support Factors under Family Code Section 4320—
Attachment—Judicial Council Form

[1] Comment

[2] Form

51.102B Spousal or Domestic Partner Support Factors under Family Code Section 4320
—Attachment—Judicial Council Form

§ 51.103 Findings of Fact

[1] Comment

[a] Use of Form

[b] Use of Statement of Decision

[c] Required Findings

[2] Form

51.103 Findings of Fact

§§ 51.104 [Reserved]

Subpart 2. Spousal Support Orders

§ 51.110 Open-Ended Order; Support for Indefinite Period

[1] Comment
 Page 35 of 171
Synopsis to CHAPTER 51 : Spousal Support Orders

[2] Form

51.110 Open-Ended Order; Support for Indefinite Period

§ 51.111 Support for Limited Period; Jurisdiction Retained Indefinitely

[1] Comment

[2] Form

51.111 Support for Limited Period; Jurisdiction Retained Indefinitely

§ 51.112 Richmond Order; Support for Limited Period With Limited Reservation of Jurisdiction

[1] Comment

[2] Form

51.112 Richmond Order; Support for Limited Period With Limited Reservation of
Jurisdiction

§ 51.113 Substantive Step-Down or Step-Up in Amount

[1] Comment

[2] Form

51.113 Substantive Step-Down or Step-Up in Amount

§ 51.114 Payment of Debts

[1] Comment

[2] Form

51.114 Payment of Debts

§ 51.115 Provisions for Support After Death of Supporting Party

[1] Comment

[a] Use of Form

[b] Nature of Order

[c] Life Insurance

[2] Form—Purchase of Annuity

51.115.1 Purchase of Annuity

[3] Form—Maintenance of Life Insurance

 Page 36 of 171
Synopsis to CHAPTER 51 : Spousal Support Orders

51.115.2 Maintenance of Life Insurance

[4] Form—Establishment of Trust

51.115.3 Establishment of Trust

[5] Form—Supporting Spouse Cooperates in Purchase of Life Insurance by Other Spouse

51.115.4 Supporting Spouse Cooperates in Purchase of Life Insurance by Other Spouse

§ 51.116 Reservation of Jurisdiction Only

[1] Comment

[2] Form

51.116 Reservation of Jurisdiction Only

§§ 51.117– [Reserved]

PART E. REFERENCES

§ 51.200 Legal Texts

California Family Law Prac & Proc 2d ed.
Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document
 2 California Family Law Prac & Proc 2d ed. § 51.01

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART A.
JURISDICTION AND OTHER GENERAL ISSUES

§ 51.01 Scope of Chapter

This chapter is concerned with the standards that govern spousal support orders in proceedings in which the court
has jurisdiction to order support. These proceedings are noted in Part A of the chapter. Part B sets forth the
standards for ordering temporary support pending trial or hearing at which post-judgment support will be
determined. Part C considers issues that must be addressed in making the initial order for post-judgment support.
These issues include the general standards for ordering support (Subpart 1), the question of whether jurisdiction is
to be retained to conduct further proceedings on support in the future (Subpart 2), the question of whether support
will be modifiable in future proceedings (Subpart 3) and certain enforcement remedies that are addressed at the time
of initial issuance (Subpart 4). Part D contains the forms that are used in seeking spousal support, including several
different spousal support orders (Subpart 2). Forms for use as spousal support provisions in marital termination
agreements are presented in Chapter 214.

This chapter also considers provisions in the initial permanent order that provide that spousal support is
nonmodifiable (Subpart 3 of Part C). Modification proceedings and the standards for modification are discussed in
Chapter 52. In addition, this chapter considers the standards for either terminating spousal support permanently or
reserving jurisdiction to order spousal support in the future, even if no current spousal support order is made
(Subpart 2 of Part C). The standards for modifying or terminating spousal support based upon changed
circumstances are covered in Chapter 52.

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document
 2 California Family Law Prac & Proc 2d ed. § 51.02

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART A.
JURISDICTION AND OTHER GENERAL ISSUES

§ 51.02 Subject Matter Jurisdiction

[1] Proceedings in Which Spousal Support May Be Ordered

In a proceeding for dissolution of marriage or legal separation, the court has jurisdiction to inquire into and
render any judgment and make such orders as are appropriate concerning the support of either party. 1 Spousal
support may also be ordered under some circumstances in a proceeding for nullity of marriage. 2 It may also be
ordered in a proceeding between spouses that does not address the status of the marital relationship. 3
On January 1, 2005, the Registered Domestic Partnership Act became effective. 4 The Registered Domestic
Partnership Act specifically provides that the same rights, protections, benefits, duties and responsibilities of
spouses shall be applied to registered domestic partners. 5 Former registered domestic partners also have the
same rights, protections, benefit, duties, and responsibilities as spouses. 6 Throughout this chapter when the term
“spouse” or “party” is used, the term “registered domestic partner” is included.
However, it is important to remember that the federal tax laws that apply to spousal support between spouses do
not apply to registered domestic partners. See discussion of tax treatment of spousal support in Chapter 160.

■ PRACTICE TIP:

Since the enactment of PL 115-97, Title I, Subtitle A – Part V § 11051 in December 2017, known as
the Tax Cut and Jobs Act, the “taxability/deductibility” of spousal support on the parties’ respective tax
returns is no longer operable. There is no tax liability to the receiving spouse for spousal support and
there is no deductibility for the paying spouse for spousal support. There was a transition period
between the enactment of the legislation, which had special rules, and the new rules effective January
1, 2019. There may still be permanent spousal support orders in effect that were made during this
transition period and may be affected by any modification of those spousal support orders.
Commentary by Kathryn Kirkland

11 Fam. Code § 2010(d); see Fam. Code §§ 3600 (temporary support, discussed in pt. B), 4330 (post-judgment support, discussed in pt. C); In
re Marriage of Stimel (1996) 49 Cal. App. 4th 991, 996, 57 Cal. Rptr. 2d 18.

22 See Fam. Code § 2254.

33 See Fam. Code § 4303(a).

44 Family Code Section 297.5

55 Fam. Code § 297.5(a)

66 Fam. Code § 297.5(b)

 Page 39 of 171
§ 51.02 Subject Matter Jurisdiction

A California domiciliary whose marriage was dissolved ex parte in another jurisdiction that did not have
personal jurisdiction over him or her (see § 51.03) may still seek spousal support from a California court.7

Pendente lite spousal support may be ordered in a nonmarital action between cohabitants based on express or
implied contract (Marvin8 action) only on sufficient proof of an agreement to provide temporary support. Proof
must be specific as to the question of temporary support; proof that the parties intended their relationship to
have all the incidence of marriage except the legal imprimatur is insufficient. Proof of need and ability to pay
are also insufficient.9 Post—judgment support may be awarded as an element of contract damages. 1010 Whether
an express or implied agreement to provide post-judgment support must be proved as a specific component of
the contract has not been resolved.1111

Marvin actions are discussed further in Chapters 1 and 2, and provisions for nonmarital cohabitation
agreements are presented in Chapter 200. The right to spousal support without filing for dissolution of
marriage, and the right to support in an action for nullity of marriage, are discussed in Chapter 50.

■ PRACTICE TIP:

Marvin was decided in 1976, at a time when the views of society about non-married couples residing
together in an intimate relationship were very different than today. In the 1970s there was a flurry of
Marvin actions by women who were living in a non-marital intimate relationship with wealthy men.
Most of them settled out of court and, because society rapidly altered its views of non-married couples
living together, Marvin actions are essentially no longer viable unless there is a written contract
between the parties for a payment that in a marital dissolution would be spousal support. Commentary
by Kathryn Kirkland

[2] Proper Court

The superior court has jurisdiction in all proceedings under the Family Code. 1212 There is no federal court
subject matter jurisdiction to order spousal support.1313
California Family Law Prac & Proc 2d ed.
Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

77 Hudson v. Hudson (1959) 52 Cal. 2d 735, 744–745, 344 P.2d 295; see In re Marriage of Newman (2000) 80 Cal. App. 4th 846, 851, 95
Cal. Rptr. 2d 691 (California court that otherwise has jurisdiction over issues and parties is not deprived of jurisdiction to award spousal
support by pendency of proceeding in another state that does not address that issue).

88 Marvin v. Marvin (1976) 18 Cal. 3d 660, 134 Cal. Rptr. 815, 557 P.2d 106.

99 Friedman v. Friedman (1993) 20 Cal. App. 4th 876, 883–890, 24 Cal. Rptr. 2d 892.

1010 Friedman v. Friedman (1993) 20 Cal. App. 4th 876, 889, 24 Cal. Rptr. 2d 892.

1111 See Friedman v. Friedman (1993) 20 Cal. App. 4th 876, 886–887 n.3, 24 Cal. Rptr. 2d 892.

1212 Fam. Code § 200.

1313 Ankenbrandt v. Richards (1992) 504 U.S. 689, 112 S. Ct. 2206, 119 L. Ed. 2d 468, 482.
 Page 40 of 171
§ 51.02 Subject Matter Jurisdiction

End of Document
 2 California Family Law Prac & Proc 2d ed. § 51.03

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART A.
JURISDICTION AND OTHER GENERAL ISSUES

§ 51.03 Personal Jurisdiction

Because a spousal support order imposes a personal obligation on the spouse ordered to pay the support, a court
must have in personam jurisdiction over that party in order to make an order for support. 1 However, if there is
community or quasi-community property over which the court has quasi in rem jurisdiction, 2 a court may perhaps
fashion a spousal support order to be paid from designated property. 3 For further discussion relating to personal
jurisdiction in dissolution proceedings, see Chapter 90. For a comprehensive discussion of “in personam,” “in rem,”
and “quasi in rem” jurisdiction generally, see California Forms of Pleading and Practice, Ch. 323, Jurisdiction,
Inconvenient Forum, and Appearances (Matthew Bender).

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

11 See Baldwin v. Baldwin (1946) 28 Cal. 2d 406, 415–416, 170 P.2d 670; Comfort v. Comfort (1941) 17 Cal. 2d 736, 741, 751, 112 P.2d
259; Judd v. Superior Court (1976) 60 Cal. App. 3d 38, 45–46, 131 Cal. Rptr. 246.

22 See Fam. Code § 2011 (authority to assert quasi in rem jurisdiction over community and quasi-community property).

33 See Shaffer v. Heitner (1977) 433 U.S. 186, 199 n.17, 97 S. Ct. 2569, 53 L. Ed. 2d 683; Hanson v. Denckla (1958) 357 U.S. 235, 246 n.12,
78 S. Ct. 1228, 2 L. Ed. 2d 1283.
 2 California Family Law Prac & Proc 2d ed. § 51.04

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART A.
JURISDICTION AND OTHER GENERAL ISSUES

§ 51.04 Relation Between Spousal Support and Community Property Rights

Spousal support may not be ordered in lieu of an equal division of community property. Spousal support is
discretionary, while property rights are absolute, and a party should not have to appeal to the discretion of the court
in order to receive what is rightfully theirs.1

Thus, a court may not increase spousal support as a method to achieve payment of amounts required to be paid to
the supported spouse to equally divide the parties’ community property. 2 However, a court may order the debtor
spouse to make periodic payments to the creditor spouse on a property division obligation, in addition to amounts
ordered for spousal support.3

While spousal support may not be ordered in lieu of a proper property division, the propriety and amount of support
may well depend on the division of community property. If a party receives income-producing community property
or quasi community property sufficient to give that party proper support, the court may deny further support to be
paid from the separate property of the other party. 4 For further discussion of the effect of property received in the
division of community property on spousal support obligations, see § 51.36.

Although it may not be imposed on the parties by the court, the parties may agree to a nonmodifiable permanent
spousal support obligation, either as to amount or duration or both. Such agreements, even if they influence an
agreement for division of community property, will be upheld.5 For further discussion, see § 51.40 and Chapter 52.

Stipulated temporary support payments are subject to characterization as advances on the recipient spouse’s share
of community property, if approved prior to a court order for temporary spousal support. 6 For discussion of
retroactivity of temporary support order, see § 51.10.

11 In re Marriage of Brown (1976) 15 Cal. 3d 838, 848, 126 Cal. Rptr. 633, 544 P.2d 561; see In re Marriage of White (1987) 192 Cal. App.
3d 1022, 1026, 237 Cal. Rptr. 764.

22 See In re Marriage of Maunder (1976) 57 Cal. App. 3d 570, 573, 127 Cal. Rptr. 707 ; see In re Marriage of Cobb (1977) 68 Cal. App. 3d
855, 861, 137 Cal. Rptr. 670.

33 Verner v. Verner (1978) 77 Cal. App. 3d 718, 727, 143 Cal. Rptr. 826; cf. In re Marriage of Schofield (1998) 62 Cal. App. 4th 131, 73 Cal.
Rptr. 2d 1.

44 Fam. Code § 4321(a); see In re Marriage of Mastropaolo (1985) 166 Cal. App. 3d 953, 957–958, 213 Cal. Rptr. 26, cert. denied, 475 U.S.
1011 (propriety of spousal support order depended on whether husband’s military retirement pay was divisible community property); cf. In re
Marriage of Terry (2000) 80 Cal. App. 4th 921, 932, 95 Cal. Rptr. 2d 760 (dictates of Fam. Code § 4322 compelled termination of spousal
support when former wife had sufficient income to meet support needs).

55 See Fam. Code §§ 3591(c), 3651(d); In re Marriage of Carletti (1975) 53 Cal. App. 3d 989, 994–995, 126 Cal. Rptr. 1.
 Page 43 of 171
§ 51.04 Relation Between Spousal Support and Community Property Rights

■ PRACTICE TIP:

Although the McTiernan & Dubrow case did rule, in that case, that a stipulated order for support pending
a hearing on temporary spousal support could be construed as an advance on the division of community
property, in the court’s words “…no request for or issue of retroactive support was presented when
temporary support was ordered.” However, in most cases where a request for order for temporary spousal
support has been filed, courts look to Family Code § 4333, which permits the court to make its order
retroactive to the date of filing of the request for order or any other appropriate date. It is somewhat puzzling
as to why the McTiernan & Dubrow trial court and appellate court did not follow this most common of
practices for temporary spousal support. Commentary by Kathryn Kirkland

One court permitted a short-term deferred disposition of the community residence, characterizing the out-of-
residence husband’s forbearance of immediate receipt of his monetary interest in the residence and the denial of
interest on that sum as spousal support. The husband was unemployed at the time and unable to otherwise make
spousal support payments.7 Another court refused to adopt this approach in a case in which the husband was able to
pay and was currently paying spousal support, presumably at an appropriate level. 8

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

66 Inre Marriage of McTiernan & Dubrow (2005) 133 Cal. App. 4th 1090, 1104–1106, 35 Cal. Rptr. 3d 287 (retroactive support not
requested when temporary spousal support was ordered).

77 In re Marriage of Hurtienne (1981) 126 Cal. App. 3d 374, 380, 178 Cal. Rptr. 748.

88 In re Marriage of Horowitz (1984) 159 Cal. App. 3d 368, 371–372, 205 Cal. Rptr. 874.
 2 California Family Law Prac & Proc 2d ed. § 51.05

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART A.
JURISDICTION AND OTHER GENERAL ISSUES

§ 51.05 Family Support

Family support is an agreement between the parties, which is made an order or judgment, that combines child
support and spousal support without designating the amount allocated to each. 1 The primary purpose behind a
family support designation is to effect income tax savings. For discussion, see Chapter 160.

■ ALERT:
2
See P.L. 115-97, Title I, Subtitle A, Part V, § 1051(b)(1)(B).

Because of recent changes to the Internal Revenue Code that repeal the alimony deduction, 2 these tax
savings will be eliminated for an initial support order made pursuant to an order or separation agreement
executed after December 31, 2018. There was a transition period during 2018, during which the parties may
elect to have spousal support under the old rules (taxable/deductible) or the new rules (non-taxable/non-
deductible). All orders after 1/1/2019 are only under the new rules.

■ PRACTICE TIP:

Family support offered certain tax advantages under former law while creating some tricky interpretation
and other enforcement issues. Under present law, there is no reason to create family support, as opposed to
child support and spousal support. In fact, many family support orders will come back before the Court well
before the children emancipate, and it appears the Court has no discretion and must allocate between child
and spousal support. The change in federal tax law make family support no longer viable. Although the tax
savings benefits are not available for new support orders entered after December 31, 2018, there can still be
hidden pitfalls in an existing family support order if the amount of family support is reduced within certain
timeframes of a minor child’s 18th birthday. If counsel is consulted as to an existing family support order,
counsel should strongly advise the client to seek advice from their tax advisor. [For discussion of
considerations for alimony tax treatment, see Chapter 160.] Commentary by Diana Richmond, Sandra L.
Mayberry, and Kathryn Kirkland

A form for use as a stipulation to family support is set forth in Chapter 214.

11 Fam. Code § 92; see Fam. Code § 4066.

2
 Page 45 of 171
§ 51.05 Family Support

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document
 2 California Family Law Prac & Proc 2d ed. §§ 51.06–51.09

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART A.
JURISDICTION AND OTHER GENERAL ISSUES

§§ 51.06– 51.09 [Reserved]

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document
 2 California Family Law Prac & Proc 2d ed. § 51.10

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART B.
TEMPORARY SUPPORT

§ 51.10 When Temporary Support Is Authorized; Retroactivity of Order

During the pendency of any proceeding for dissolution of marriage or for legal separation, the court may order
either spouse to pay any amount that is necessary for the support of the other consistent with the requirements of the
provisions requiring consideration of domestic violence in Family Code Sections 4320(i), (m) and 4325.1 A
proceeding for dissolution is pending from the time of its commencement by filing the petition 2 until its final
determination on appeal or until the time for appeal has passed. 3 Therefore, a temporary support order may be made
retroactive to the date on which a petition for dissolution is filed. 4 An order for retroactive temporary support may
be issued if requested by a party.5 For further discussion of temporary support pending appeal, see § 51.22.

■ PRACTICE TIP:

The case cited above, In re Marriage of Dick, does provide that a temporary spousal support award may
be made retroactive to the date of the filing of the action. Now, Courts often read the revised Judicial
Council Court form Petition or Response as a formal advisement to a parent they SHALL be paying child
support, and the Court will make it retroactive to the filing of the Petition or Response. However,
specifically regarding spousal support, there are no subsequent cases which follow the precedent in Dick.
Family Code § 4333 says the court may make an order for temporary spousal support retroactive to the date
of filing of the request for order for temporary spousal support. Commentary by Hon. Roderic Duncan,
Judge (Ret.), Kathryn Kirkland, and Sandra L. Mayberry

11 Fam. Code § 3600; In re Marriage of MacManus (2010) 182 Cal. App. 4th 330, 336–337, 105 Cal. Rptr. 3d 785; see Fam. Code § 2010(d).

22 Fam. Code § 2330(a).

33 See Code Civ. Proc. § 1049; see In re Askmo (2000) 85 Cal. App. 4th 1032, 1038–1040, 102 Cal. Rptr. 2d 662 (temporary support and
attorney’s fees were awarded to wife, while prior appeal was pending and default judgment against her had not been set aside).

44 In re Marriage of Dick (1993) 15 Cal. App. 4th 144, 165–166, 18 Cal. Rptr. 2d 743; cf. Fam. Code § 4333 (spousal support order may be
made retroactive only to date of filing of notice of motion or order to show cause for spousal support); In re Marriage of Mendoza and
Cuellar (2017) 14 Cal. App. 5th 939, 222 Cal. Rptr. 3d 420 (order for spousal support could not be made retroactive to date petition for
dissolution was filed, when there was no request for temporary spousal support). Fam. Code § 4333 continues a provision of former Civ.
Code § 4801(a) without substantive change (Law Revision Commission Comment to Fam. Code § 4333). This provision was construed in
Marriage of Dick as limited to post-judgment support orders.

55 See In re Marriage of MacManus (2010) 182 Cal. App. 4th 330, 334–335, 105 Cal. Rptr. 3d 785 (trust funds reallocated at party’s request
from temporary child support to temporary spousal support); In re Marriage of McTiernan & Dubrow (2005) 133 Cal. App. 4th 1090, 1105–
1106, 35 Cal. Rptr. 3d 287 (absent request for retroactive temporary support, parties’ stipulated support payments made prior to order for
temporary spousal support were characterized as advances from community property).
 Page 48 of 171
§ 51.10 When Temporary Support Is Authorized; Retroactivity of Order

Federal law directs state courts to give full force and effect to American Indian tribal law and custom in civil
matters.6 Chumash tribal custom and tradition provides that funds distributed by the tribe to its members should not
be used to pay spousal support to nonmembers. However, in California, the family law court is not required to give
full force and effect to the Chumash custom and tradition because it is inconsistent with California law regarding
the awarding of temporary spousal support.7

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

66 For further discussion, see Ch. 176.

77 In re Marriage of Jacobsen (2004) 121 Cal. App. 4th 1187, 1191–1193, 18 Cal. Rptr. 3d 162.
 2 California Family Law Prac & Proc 2d ed. § 51.11

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART B.
TEMPORARY SUPPORT

§ 51.11 Purpose of Order

The purpose of a temporary support order is to maintain the status quo of the parties until trial, in order to pay
creditors and to enable a spouse to live in substantially the same manner to which the supported spouse has been
accustomed pending disposition of the case. 1 The same is true of an order for temporary support pending appeal. 2
However, unless the parties are very wealthy, it should be explained to the client that probably neither will be able
to maintain the same standard of living while living separately as they did while living together, because it costs
more to support two households than it does to support one.3

■ PRACTICE TIP:

In most marriages, the financial reality is that there is not enough income from the supporting spouse to
maintain two households at the same level that the couple had previously enjoyed, particularly if there is a
child support order. Spouses asking for temporary spousal support should be counseled accordingly and
spouses paying support should be advised that their standard of living will also decrease. Commentary by
Kathryn Kirkland

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

11 In re Marriage of Samson (2011) 197 Cal. App. 4th 23, 29, 127 Cal. Rptr. 3d 857; In re Marriage of Winter (1992) 7 Cal. App. 4th 1926,
1932, 10 Cal. Rptr. 2d 225; see In re Marriage of Smith (1990) 225 Cal. App. 3d 469, 494 n.16, 274 Cal. Rptr. 911; Estate of Fawcett (1965)
232 Cal. App. 2d 770, 784, 43 Cal. Rptr. 160; Whelan v. Whelan (1948) 87 Cal. App. 2d 690, 692, 197 P.2d 361.

22 Bain v. Superior Court (1974) 36 Cal. App. 3d 804, 810, 111 Cal. Rptr. 848.

33 See In re Marriage of Morrison (1978) 20 Cal. 3d 437, 455, 143 Cal. Rptr. 139, 573 P.2d 41.
 2 California Family Law Prac & Proc 2d ed. § 51.12

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART B.
TEMPORARY SUPPORT

§ 51.12 Standard for Making Order

The standards for temporary and permanent spousal support have historically been significantly different. Because
the purpose of temporary support has traditionally been to maintain the living conditions and standards of the
parties in as close to the status quo position as possible pending trial and the division of property and liabilities ( see
§ 51.11), a temporary support order based solely on income has been deemed appropriate. 1 In contrast, an order for
permanent spousal support requires consideration of the factors set forth in Family Code Section 4320, only one of
which is the income of the parties (see § 51.31). Historically, no factual findings under Family Code Section 4320
have been required for temporary spousal support orders.2

The court is not restricted by any set of statutory guidelines in setting a temporary spousal support amount, 3
although the court must still consider the guidelines against awarding support to the perpetrators of domestic or
sexual violence.4 Child support computer programs have a subprogram that generates a temporary spousal support
amount that can be used to establish a temporary spousal support suggesting appropriate awards for temporary
spousal support, based solely on the parties’ incomes (with adjustments for child support, if any). 5 Even when such
computer programs exceed a supported party’s stated living expenses because the party has cut back or is living
frugally, the use of such guidelines for temporary spousal support may be proper.6

In exercising its broad discretion, the court may properly consider the “big picture” concerning the parties’ assets
and income available for support in light of the marriage standard of living. Subject only to the general need of the
spouse seeking temporary support and the ability to pay of the spouse from whom temporary support is sought, the
amount of a temporary spousal support award lies within the court’s sound discretion, which will only be reversed
on appeal on a showing of clear abuse of discretion. 7 Ability to pay encompasses more than the income of the

11 In re Marriage of Winter (1992) 7 Cal. App. 4th 1926, 1933.

22 In re Marriage of Czapar (1991) 232 Cal. App. 3d 1308, 1316, 285 Cal. Rptr. 479.

33 In re Marriage of Pletcher (2021) 68 Cal. App. 5th 906; In re Marriage of Wittgrove (2004) 120 Cal. App. 4th 1317, 1327, 16 Cal. Rptr.
3d 489; In re Marriage of Cheriton (2001) 92 Cal. App. 4th 269, 312, 111 Cal. Rptr. 2d 755.

44 See Fam. Code § 3600, making Fam. Code §§ 4320(i), (m) and 4325 applicable to temporary spousal support awards.

55 In re Marriage of Wittgrove (2004) 120 Cal. App. 4th 1317, 1327–1328, 16 Cal. Rptr. 3d 489; In re Marriage of Winter (1992) 7 Cal. App.
4th 1926, 1933, 10 Cal. Rptr. 2d 225.

66 In re Marriage of Wittgrove (2004) 120 Cal. App. 4th 1317, 1328, 16 Cal. Rptr. 3d 489.

77 In re Marriage of Wittgrove (2004) 120 Cal. App. 4th 1317, 1327, 16 Cal. Rptr. 3d 489; In re Marriage of Murray (2002) 101 Cal. App.
4th 581, 594, 124 Cal. Rptr. 2d 342; see In re Marriage of MacManus (2010) 182 Cal. App. 4th 330, 337–338, 105 Cal. Rptr. 3d 785 (proper
 Page 51 of 171
§ 51.12 Standard for Making Order

spouse from whom temporary support is sought. Investments and other assets may be used. 8 Courts may properly
look to the parties’ accustomed marital lifestyle as the main basis for a temporary support order. 9

■ PRACTICE TIP:

If and to the extent investment income is considered, the court and counsel should be attentive to various
related issues. If the investment income is community in character, allowing each party to utilize it for
temporary support may be an appropriate exception to the automatic temporary restraining orders. But
ordering or allowing the dependent spouse to resort to community investment income when the other party
does not need to do so raises questions as to appropriate discretion and the appropriate level of reliance of
one party on their earned income while the other party must resort to their share of investment income. If the
investment income is either spouse’s separate property, that income may well be considered in assessing
need and ability to pay. Commentary by Diana Richmond

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

consideration of history of domestic violence in awarding temporary spousal support).

88 In re Marriage of Wittgrove (2004) 120 Cal. App. 4th 1317, 1327, 16 Cal. Rptr. 3d 489 ; In re Marriage of Dick (1993) 15 Cal. App. 4th
144, 159, 18 Cal. Rptr. 2d 743.

99 Fam. Code § 3600; In re Marriage of Wittgrove (2004) 120 Cal. App. 4th 1317, 1327, 16 Cal. Rptr. 3d 489; In re Marriage of Winter
(1992) 7 Cal. App. 4th 1926, 1932, 10 Cal. Rptr. 2d 225.
 2 California Family Law Prac & Proc 2d ed. § 51.12A

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART B.
TEMPORARY SUPPORT

§ 51.12A Domestic Violence

When awarding temporary spousal support, the court must consider documented evidence of domestic violence or
sexual violence perpetrated by one spouse against the other. 1010 Different standards apply, depending on whether
there is a felony conviction; a misdemeanor conviction; or documented evidence of any history of domestic
violence, even if there has been no conviction.

The court is prohibited from awarding spousal support to a spouse who has been convicted of a violent sexual
felony or domestic violence felony against the other spouse, if the petition for dissolution is filed within five years
after the conviction and any time served. 1111 However, there is an exception in cases in which there is documented
evidence that the convicted spouse was the victim of domestic violence at the hands of the other spouse. 1212

There is a rebuttable presumption against awarding support to a spouse who was convicted of a domestic violence
misdemeanor against the other spouse, if the petition for dissolution is filed within five years of the conviction. 1313
The presumption may rebutted by documented evidence that the convicted spouse was the victim of domestic
violence by the other spouse.1414

Even if there has been no conviction for domestic or sexual violence, the court must consider all documented
evidence of any history of domestic violence between the parties or by one party against either party’s child in
awarding temporary support.1515

“Documented evidence,” as used here, is written evidence, and includes videos, “voicemail messages, text
messages, social media posts, cell phone recordings, police reports and 911 calls, medical records, photos,
employment records, and court records from criminal prosecutions reflecting convictions for domestic violence

1010 See Fam. Code § 3600, making Fam. Code §§ 4320(i), (m) and 4325 applicable to temporary spousal support awards.

1111 Fam. Code §§ 4320(m), 4324.5.

1212 Fam. Code § 4324.5(c).

1313 Fam. Code § 4325.

1414 See In re Marriage of Brewster & Clevenger (2020) 45 Cal. App. 5th 481, 504, 258 Cal. Rptr. 3d 745 (“documented evidence” is written
evidence; convicted wife’s testimony was insufficient to establish rebut presumption against awarding her support); In re Marriage of
Gilbert-Valencia & McEachen (2023) 98 Cal. App. 5th 520, 316 Cal. Rptr. 3d 697 (court erred in failing to consider husband’s request for
domestic violence restraining order, which had been admitted into evidence; although request was dismissed with prejudice pursuant to
parties’ agreement, agreement did not specify that request could not be considered in awarding spousal support).

1515 Fam. Code § 4320(i). See In re Marriage of Brewster & Clevenger (2020) 45 Cal. App. 5th 481, 504, 258 Cal. Rptr. 3d 745.
 Page 53 of 171
§ 51.12A Domestic Violence

offenses.”1616 It also includes a request for a domestic violence restraining order filed in the action for dissolution of
marriage.1717

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

1616 See In re Marriage of Brewster & Clevenger (2020) 45 Cal. App. 5th 481, 504, 258 Cal. Rptr. 3d 745 (convicted wife’s testimony that
husband committed domestic violence against her was insufficient, in absence of written evidence).

1717 In re Marriage of Gilbert-Valencia & McEachen (2023) 98 Cal. App. 5th 520, 316 Cal. Rptr. 3d 697 (court erred in failing to consider
husband’s request for domestic violence restraining order, which had been admitted into evidence; although request was dismissed with
prejudice pursuant to parties’ agreement, agreement did not specify that request could not be considered in awarding spousal support).
 2 California Family Law Prac & Proc 2d ed. § 51.13

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART B.
TEMPORARY SUPPORT

§ 51.13 Court Schedules and Computer Software

Many courts have promulgated temporary spousal support schedules or formulas based solely on income in an
attempt to obtain uniformity of decisions and encourage agreements between the parties. Use of these calculation
methods has been entirely appropriate for determining temporary support, 1 but not long-term support.2 However,
when there is any history of domestic violence, consideration of income alone may now be inappropriate because of
the statutory requirement that temporary support orders be “consistent” with Family Code Sections 4320(i), (m) and
4325 (see § 51.12).3

There are several computer software products that have been used by California judges and attorneys for the
purpose of computing temporary spousal support. 4 The use of this software has been considered appropriate as long
as it conforms to the standards set forth in California Rules of Court, Rule 5.275, promulgated by the Judicial
Council to ensure that software performs in a manner consistent with the applicable statutes and rules for
determining support.5 If unusual circumstances exist in a given case, the court has discretion to adjust the amount of
temporary spousal support generated by the computer program.6

■ PRACTICE TIP:

Computer programs offer a means to discover net disposable income for each party under various
scenarios. Thus, earnings and child support for each party may be entered and the computer asked how much
spousal support would be necessary to provide the recipient with a particular net disposable income. The net
available to the payor under such a hypothetical is shown and can be evaluated to determine its fairness to
each party. It is important to have reviewed the computer calculation with the client before the matter is
considered by the court so that the client understands what is coming. It also helps the practitioner prepare

11 In re Marriage of Winter (1992) 7 Cal. App. 4th 1926, 1933.

22 See, e.g., Namikas v. Miller (2014) 225 Cal. App. 4th 1574.

33 See In re Marriage of Burlini (1983) 143 Cal. App. 3d 65, 69, 191 Cal. Rptr. 541; see also In re Marriage of Schulze (1997) 60 Cal. App.
4th 519, 522–528, 70 Cal. Rptr. 2d 488; In re Marriage of Zywiciel (2000) 83 Cal. App. 4th 1078, 100 Cal. Rptr. 2d 242.

44 See In re Marriage of Schulze (1997) 60 Cal. App. 4th 522–528 70 Cal. Rptr. 2d 488.

55 See Fam. Code § 3830; see also Cal. Rules of Ct., Rule 5.275(j) (in all non-IV-D proceedings, the courts must permit parties or their
counsel to use any software that Judicial Council has certified under Rule 5.275).

66 In re Marriage of Olson (1993) 14 Cal. App. 4th 1, 5–6 n.3, 17 Cal. Rptr. 2d 480; see § 51.30.
 Page 55 of 171
§ 51.13 Court Schedules and Computer Software

for ways in which the judge may exercise discretion to adjust the temporary spousal support to reflect, for
example, significant debt or other expenses which must be paid by one or both parties to preserve assets.
Since the change in the tax rules for alimony (but not California tax rules), the calculation of net disposable
income is much less complicated, as computers can do it much faster, they are still quite useful.
Commentary by Hon. Roderic Duncan, Judge (Ret.), Sandra L. Mayberry, and Kathryn Kirkland

In setting temporary support, the court must try to predict the payor spouse’s likely income in the immediate future.
In most cases, the court can reasonably rely on the spouse’s income for the previous 12 months and use this figure
in the computer program.7 If, however, the spouse’s income varies wildly from year to year, the court may need to
look at a longer period to determine a representative income sample. 8 If the parties disagree about the time period to
be used, the court has an equitable duty to issue a support award based on its own determination of a representative
time period, based on the underlying evidence.9 Alternatively, the court may include an Ostler/Smith component
and award support based on the amount the payor spouse reliably earns each year, plus a percentage of the spouse’s
bonus, up to the amount necessary to support the parties’ marital standard of living. 1010

■ PRACTICE TIP:

The guideline child support and temporary spousal support schedules also contain schedules for “bonus”
support if the income of either party is not static each month, for example if one party is a salesperson and
receives commissions on a periodic basis. These “bonus” schedules make the award of both child and
spousal support more realistically reflect the ability of the payor spouse to have the actual income available
to make the support payment. The “bonus” support, may also reflect periodic bonuses, restricted stock units,
stock options, or other forms of equity compensation. Commentary by Diana Richmond and Kathryn
Kirkland

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

77 In re Marriage of Pletcher (2021) 68 Cal. App. 5th 906, 914.

88 In re Marriage of Pletcher (2021) 68 Cal. App. 5th 906, 914 (when husband’s income as investment manager fluctuated wildly from year
to year, court erred in basing temporary support on his last year of income, which was his best year by a wide margin); In re Marriage of
Riddle (2005) 125 Cal. App. 4th 1075, 23 Cal. Rptr. 3d 273.

99 In re Marriage of Pletcher (2021) 68 Cal. App. 5th 906, 915.

1010 In re Marriage of Pletcher (2021) 68 Cal. App. 5th 906, 916; see In re Marriage of Ostler & Smith (1990) 223 Cal. App. 3d 33, 272 Cal.
Rptr. 560.
 2 California Family Law Prac & Proc 2d ed. § 51.14

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART B.
TEMPORARY SUPPORT

§ 51.14 Manner of Making Application

Application for a temporary spousal support order is made by a request for order. 1 Note that a pendente lite order
awarding support or attorney’s fees can technically be made on a court’s own motion. 2

■ PRACTICE TIP:
3
Loeb v. Loeb (1948) 84 Cal. App. 2d 141.

Although Loeb v. Loeb,3 the case on which the principle that a court may award temporary spousal
support on its own motion, has technically not been reversed, the statute in existence when Loeb was
decided has been superseded. It would not be good practice to assume that a court today would award
temporary spousal support on its own motion. Commentary by Kathryn Kirkland

The general procedure for obtaining or opposing temporary orders is discussed, and an example of the above form
is presented, in Chapter 95.

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

11 See Cal. Judicial Council Form FL-300. The Request for Order (FL-300) replaces the former Judicial Council Application for Order and
Supporting Declaration (former FL-310), Notice of Motion (former FL-301), and Order to Show Cause (former FL-300) forms.

22 In re Askmo (2000) 85 Cal. App. 4th 1032, 1038, 102 Cal. Rptr. 2d 662.
3
 2 California Family Law Prac & Proc 2d ed. § 51.15

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART B.
TEMPORARY SUPPORT

§ 51.15 Showing Required

[1] Need
Family Code Section 3600 authorizes the court during the pendency of the proceeding to order either spouse to
pay any amount that is necessary for the support of the other spouse, subject to the condition that it be
consistent with the requirements of the provisions requiring consideration of domestic violence in Family Code
Sections 4320(i), (m) and 4325. The amount of support lies within the trial court’s discretion, based on the
needs of the parties.1 The burden of showing the need is on the party seeking the support.2

There is no need for the spouse seeking support to set out penny by penny their requirements; there need only
be a showing on which the court can determine approximately the supported spouse’s needs. 3 This showing is
made primarily on the Income and Expense declaration, 4 which must be filed with the court before any hearing
on temporary support.5 For an illustrative example of an Income and Expense Declaration, see § 51.100.

■ PRACTICE TIP:

Most temporary spousal support hearings are on heard on a “short cause” calendar where each case is
allotted no more than 20 or 30 minutes. It is important, therefore, to make the Income and Expense
Declaration as complete and accurate as possible. If there are unusual expenses or circumstances for
either party that might justify a higher or lower amount of spousal support, these should be explained
in the declaration by the party which is attached to the request for order (RFO). Also, be certain that the
Income and Expense Declaration is prepared by the practitioner AND the client. The client is the one
who signs the Income and Expense Declaration under penalty of perjury and is likely to be questioned
by the judge or at deposition about how the numbers were calculated, particularly expenses. “I don’t
know; my attorney did this” is not a good answer for a document signed under penalty of perjury by
the client. It is also important to use a family law forensic accountant to assist in determining which
categories in the computer program to place various types of income. A family law forensic accountant
can also be of great assistance in helping the client and counsel to figure out how much the parties

11 In re Marriage of Czapar (1991) 232 Cal. App. 3d 1308, 1316, 285 Cal. Rptr. 479.

22 See Evid. Code § 500.

33 Zinke v. Zinke (1963) 212 Cal. App. 2d 379, 385, 28 Cal. Rptr. 7.

44 See Cal. Judicial Council Form FL-150.

55 See Cal. Rules of Ct., Rules 5.128 (eff. through Dec. 31, 2012), 5.260(a) (eff. Jan. 1, 2013).
 Page 58 of 171
§ 51.15 Showing Required

actually spent on the various items on page 3 of the Income and Expense Declaration and to identify
expenses that are not specifically listed, such as pet care and personal grooming expenses. This
assistance can make a significant difference in the support amount. Commentary by Kathryn Kirkland
and Sandra L. Mayberry

The parties may, of course, stipulate to the amount of spousal support to be allowed pendente lite, and this will
obviate the need for proof of the supported spouse’s need and of the paying spouse’s ability to pay. The
stipulation may be entered into orally in open court.6
The authority of the court to direct a spouse to pay temporary support is not divested by the fact that the spouse
is paying all the bills contracted by the other spouse, or by the declaration that the supporting spouse is willing
to pay those bills during the pendency of the proceeding. The supported spouse is not required to depend on the
will or caprice of the supporting spouse for support, but is entitled to receive a definite amount of money with
which to provide for needs, and to have the power of disbursing it.7

■ PRACTICE TIP:

While the informal practice of one spouse paying the other spouse’s bills may avoid a costly
temporary support hearing, it may also lead to expensive proceedings later in the case, such as when
the paying spouse seeks credit for payment of community obligations (so-called Epstein credits) for
some of these payments. Especially when a temporary, informal arrangement continues for a year or
more, which is not unusual, the tracing involved for such post-separation period may create an outsized
expense and ground for conflict over many discrete payments. In addition, there may be hidden tax
problems. Also, either spouse may contend that the recipient’s “needs” are or should be defined by this
temporary period. Far preferable is to arrive at some explicit agreement in advance about what
payments are to be covered, who gets credit for what, including Epstein credits and any other
reimbursements. Commentary by Diana Richmond

[2] Ability to Pay

The other principal factor to be considered on an application for temporary spousal support is the ability to pay
of the spouse from whom support is sought.8 The rejection by the trial court of evidence offered by a spouse to
show a lack of ability to pay has been held to constitute prejudicial error requiring reversal of the support
order.9
The court may, however, base the order on the supporting party’s earning capacity, rather than actual earnings,
under some circumstances.1010 Standards for determining ability to pay are discussed further in § 51.33.

66 See In re Marriage of Borson (1974) 37 Cal. App. 3d 632, 635, 112 Cal. Rptr. 432.

77 Anderson v. Anderson (1902) 137 Cal. 225, 226–227, 69 P. 1061.

88 See In re Marriage of Dick (1993) 15 Cal. App. 4th 144, 159–165, 18 Cal. Rptr. 2d 743.

99 See Arnold v. Arnold (1932) 215 Cal. 613, 614–615, 12 P.2d 435; see also In re Marriage of Murray (2002) 101 Cal. App. 4th 581, 594,
124 Cal. Rptr. 2d 342 (court cannot provisionally reduce temporary support obligation subject to reinstatement if facts on which reduction
was based are later determined to be inaccurate).
 Page 59 of 171
§ 51.15 Showing Required

■ PRACTICE TIP:

The cited cases are “permanent spousal support” cases. It is seldom possible for the court to
determine whether a supported spouse has a sufficient separate estate to be self-supporting. Until the
community estate has been divided, the court cannot know whether the supported spouse can be self-
supporting based on the combination of both the spouse’s separate and their share of the community
estate. Commentary by Kathryn Kirkland

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

1010 See Meagher v. Meagher (1961) 190 Cal. App. 2d 62, 63–65, 11 Cal. Rptr. 650 (husband quit job after separation and took work paying
substantially less).
 2 California Family Law Prac & Proc 2d ed. § 51.16

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART B.
TEMPORARY SUPPORT

§ 51.16 Effect of Separate Estate

If there are no children and a party has or acquires a separate estate, including income from employment, sufficient
for their proper support, no support order may be made or continued against the other party. 1 However, a spouse is
not required to impair the capital of their separate estate before seeking temporary support. 2

One court has held that for the purpose of setting temporary spousal support, a “separate estate” does not include
community property preliminarily distributed to the supported spouse. The court stated that these funds must
continue to be characterized as community property until the final property division. 3 Family Code Section 4321,
which allows the court to deny support to a party if there is community or quasi-community property sufficient to
provide for her or his support, applies only to post-judgment support.4

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

11 Fam. Code § 4322; see In re Marriage of Terry (2000) 80 Cal. App. 4th 921, 932, 95 Cal. Rptr. 2d 760 (dictates of Fam. Code § 4322
compelled termination of spousal support when former wife had sufficient income to meet support needs); § 51.36.

22 Whelan v. Whelan (1948) 87 Cal. App. 2d 690, 692, 197 P.2d 361; Loeb v. Loeb (1948) 84 Cal. App. 2d 141, 145, 190 P.2d 246.

33 In re Marriage of Winter (1992) 7 Cal. App. 4th 1926, 1934, 10 Cal. Rptr. 2d 225.

44 See Fam. Code § 4321(a), discussed in § 51.36.

 2 California Family Law Prac & Proc 2d ed. § 51.17

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART B.
TEMPORARY SUPPORT

§ 51.17 Effect of Raising Certain Defenses

[1] Denial That Marriage Exists

The existence of a marriage is a jurisdictional prerequisite for the right of the court to order support, 1 although
the court may now order support in a proceeding for nullity of marriage to a putative spouse, that is, one who
had a good-faith belief in the validity of the marriage.2 However, if the respondent in a dissolution action asserts
the nonexistence of the marriage, the evidence necessary to prove a marriage (or, presumably, putative spouse
status) need not be as complete on an application for temporary support as that required at the time of trial to
prove the marriage.3 Ordinarily, if a ceremonial marriage is shown and if the ceremony is followed by the
assumption of marital relations, no further proof of the fact of marriage need be made in preliminary
proceedings in order to sustain a temporary support order. An extended inquiry into the validity of the marriage
will not be allowed in preliminary proceedings. 4 Although such an order implies a finding of the existence of
the relationship, the order does not finally determine those issues or affect the final judgment. 5

[2] Waiver by Agreement

If the respondent asserts that the right to support has been previously waived by written agreement, temporary
support may be ordered until the court makes its determination on the validity of the agreement. 6 For further
discussion of agreements waiving spousal support, see Chapter 50 and § 51.40.

■ PRACTICE TIP:

Although a court apparently may order temporary spousal support pending determination of the
validity of a waiver of spousal support, it is not at all clear how the court would treat those payments if

11 Colbert v. Colbert (1946) 28 Cal. 2d 276, 279, 169 P.2d 633.

22 Fam. Code §§ 2251(a)(1), 2254; see ch. 50.

33 Colbert v. Colbert (1946) 28 Cal. 2d 276, 280, 169 P.2d 633; In re Marriage of Stich (1985) 169 Cal. App. 3d 64, 71–72, 214 Cal. Rptr.
919, cert. denied 479 U.S. 946, 107 S. Ct. 428, 93 L. Ed 2d 379.

44 Dietrich v. Dietrich (1953) 41 Cal. 2d 497, 502, 261 P.2d 269, cert. denied 346 U.S. 938, 74 S. Ct. 378, 98 L. Ed. 2d 426.

55 Dietrich v. Dietrich (1953) 41 Cal. 2d 497, 502–503, 261 P.2d 269, cert. denied 346 U.S. 938 (1954); see Gromeeko v. Gromeeko (1952)
110 Cal. App. 2d 117, 123–127, 242 P.2d 41.

66 Patton v. Patton (1948) 32 Cal. 2d 520, 523, 196 P.2d 909.

 Page 62 of 171
§ 51.17 Effect of Raising Certain Defenses

the court ultimately upheld the waiver. Counsel should request that the court specifically reserve
jurisdiction over the payments made by the temporary order so that if the court finds that the waiver
was valid, the court can make appropriate orders for repayment. Commentary by Kathryn Kirkland

[3] Change of Venue

The court in a proceeding for dissolution of marriage or legal separation may, before the determination of a
motion to transfer venue, consider and determine motions for allowance of temporary support and make all
necessary and proper orders in connection therewith.7
California Family Law Prac & Proc 2d ed.
Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

77 Code Civ. Proc. § 396b(c).

 2 California Family Law Prac & Proc 2d ed. § 51.18

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART B.
TEMPORARY SUPPORT

§ 51.18 Effect of Dismissal

If a proceeding in which support is at issue is subsequently terminated by dismissal or abatement, a temporary

support order remains enforceable as to amounts accruing before the termination. 1 However, after dismissal, further
payments under the order no longer accrue.2

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

11 Sarracino v. Superior Court (1974) 13 Cal. 3d 1, 9, 118 Cal. Rptr. 21, 529 P.2d 53.

22 Moore v. Superior Court (1970) 8 Cal. App. 3d 804, 810, 87 Cal. Rptr. 620.
 2 California Family Law Prac & Proc 2d ed. § 51.19

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART B.
TEMPORARY SUPPORT

§ 51.19 Effect of Reconciliation

Unless the order specifies otherwise, a temporary support order is not enforceable during any period in which the
parties have reconciled and are living together. 1 Reconciliation is essentially a question of fact. It must be shown
that the parties occupied the same dwelling with the intent to reunite. 2 The purpose of this provision is to foster the
party’s reconciliation, a purpose which would be undercut by allowing enforcement proceedings during an
attempted reconciliation. Although enforcement proceedings may be brought if the reconciliation fails, the obligor
may still be entitled to equitable credit for actual support provided during the attempted reconciliation. 3

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

11 Fam. Code § 3602. Cf. Helgestad v. Vargas (2014) 231 Cal. App. 4th 719 (section 3602 does not preclude equitable credit for in-home
child support actually paid during period of reconciliation after post-judgment support order has issued).

22 Walsh v. Walsh (1952) 108 Cal. App. 2d 575, 580, 239 P.2d 472.

33 See Helgestad v. Vargas (2014), 231 Cal. App. 4th 719, 735.
 2 California Family Law Prac & Proc 2d ed. § 51.20

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART B.
TEMPORARY SUPPORT

§ 51.20 Renewal of Motion, Reconsideration, and Relief From Order

A temporary support order does not prejudice the rights of the parties with respect to any subsequent order that may
be made.1 Therefore, if temporary support is denied, the party seeking support may renew the motion for temporary
spousal support at a later time during the pendency of the proceeding if different facts are present and/or may
request permanent spousal support. If temporary support is ordered, it may be modified or terminated at any time,
except as to any amount that accrued before the date of filing of request for order to modify or terminate. 2

■ PRACTICE TIP:

The provisions of an interim order, even one that the court knows is governed by Family Code § 3604,
particularly one resulting from a contested hearing rather than a stipulation, can have a significant impact on
the negotiations for permanent spousal support orders. It is generally difficult to obtain any permanent
spousal support if interim support has been denied, particularly if the denial was based on the short term of
the marriage or lack of need of the party seeking support. Commentary by Diana Richmond and Kathryn
Kirkland

In limited circumstances, a party against whom a temporary support order is made may also seek relief from the
order based on mistake, inadvertence, surprise, or excusable neglect. 3 A court also has inherent equitable power to
set aside an order obtained through extrinsic fraud or mistake. 4 For further discussion of relief from family law
judgments and orders, see Chapter 131.

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

11 Fam. Code § 3604.

22 Fam. Code § 3603; see § 51.24; see also Code Civ. Proc. § 1008(b).

33 See Code Civ. Proc. § 473(b); Cal. Rules of Ct., Rules 5.21 (eff. through Dec. 31, 2012), 5.2(d) (eff. Jan. 1, 2013).

44 See Olivera v. Grace (1942) 19 Cal. 2d 570, 575–576, 122 P.2d 564.
 2 California Family Law Prac & Proc 2d ed. § 51.21

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART B.
TEMPORARY SUPPORT

§ 51.21 Appealability of Order

[1] Order Granting Support

An order granting temporary support compels the performance of an act, is considered a final judgment in a
collateral matter, and is appealable.1 Appeal does not stay enforcement of the order unless a bond is given.2

■ PRACTICE TIP:

It is seldom economically feasible to appeal a temporary spousal support order. The reality is that an
appeal will take not only a significant amount of money (maybe more than what the party appealing the
order thinks should have been the amount) but also will take somewhere between 3 and 4 years, likely
to be long after the final judgment for the entire dissolution proceeding has been entered. However,
counsel should at least advise the client that an appeal is permitted and discuss with the client the pros
and cons of an appeal. The fact of that discussion should be reflected in counsel’s file. Commentary by
Kathryn Kirkland

[2] Order Denying Support

An order denying temporary spousal support is also appealable. In In re Marriage of Gruen,3 the court held that
an order for temporary support is an order that is immediately operative and appealable.
California Family Law Prac & Proc 2d ed.
Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

11 In re Marriage of Campbell (2006) 136 Cal. App. 4th 502, 505–506, 38 Cal. Rptr. 3d 908; In re Marriage of Skelley (1976) 18 Cal. 3d
365, 368, 134 Cal. Rptr. 197, 556 P.2d 297; Sarracino v. Superior Court (1974) 13 Cal. 3d 1, 8, 118 Cal. Rptr. 21, 529 P.2d 53.

22 See Code Civ. Proc. § 917.1(a); ch. 132.

33 In re Marriage of Gruen (2011) 191 Cal. App. 4th 627, 120 Cal. Rptr. 3d 184.
 2 California Family Law Prac & Proc 2d ed. § 51.22

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART B.
TEMPORARY SUPPORT

§ 51.22 Temporary Support Pending Appeal

The power of the trial court to order temporary support continues during the pendency of any appeal from the
judgment. The power is not affected by which party takes the appeal, nor by what issues are appealed. 1 However, a
temporary support order is terminated by judgment, 2 so that a new request for order for temporary support is
required for temporary support during the pendency of postjudgment proceedings.

Further, temporary support may be ordered pending appeal even if the duration of the temporary order thereby
extends beyond the period for which the court has retained jurisdiction in the judgment to order post-judgment
support.3 However, the amount of temporary support allowed pending appeal from a judgment should not exceed
the post-judgment support ordered in the absence of a showing of changed conditions requiring the increase or error
in the amount originally ordered.4

It is the trial court’s duty to prevent a double recovery of support if the judgment is affirmed, that is, recovery of
both the temporary order pending appeal and the permanent order in the judgment for the same period. 5 Double
recovery can be prevented by providing in the order for temporary support that the amounts paid thereunder are to
be credited against the post-judgment support ordered in the judgment for that period if the judgment is affirmed on
appeal. If the order directing payment of post-judgment support is not stayed during the appeal, 6 the order for
temporary support should provide that payment under the temporary order is in lieu of any payment required under
the permanent order.7

■ PRACTICE TIP:

11 Bain v. Superior Court (1974) 36 Cal. App. 3d 804, 807–809, 111 Cal. Rptr. 848; see In re Askmo (2000) 85 Cal. App. 4th 1032, 1042, 102
Cal. Rptr. 2d 662 (temporary support and attorney’s fees were awarded to wife, while prior appeal was pending and default judgment against
her had not been set aside); In re Marriage of Baltins (1989) 212 Cal. App. 3d 66, 94–95, 260 Cal. Rptr. 403 (involving temporary support
order pending appeal of order setting aside obligee’s default).

22 Wilson v. Superior Court (1948) 31 Cal. 2d 458, 462–463, 189 P.2d 266.

33 Bain v. Superior Court (1974) 36 Cal. App. 3d 804, 807–809, 111 Cal. Rptr. 848.

44 Farrar v. Farrar (1920) 45 Cal. App. 584, 587, 188 P. 289.

55 Farrar v. Farrar (1920) 45 Cal. App. 584, 587–588, 188 P. 289.

66 See Code Civ. Proc. § 917.1.

77 See Code Civ. Proc. § 908.

 Page 68 of 171
§ 51.22 Temporary Support Pending Appeal

If a request is granted for temporary spousal support during the pendency of an appeal, counsel for both
parties must make sure that the order addresses what effect the appellate court’s ruling will have on the
amounts paid under the temporary order. Commentary by Kathryn Kirkland

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document
 2 California Family Law Prac & Proc 2d ed. § 51.23

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART B.
TEMPORARY SUPPORT

§ 51.23 Security for Payment of Temporary Support

The court may order the supporting party to give reasonable security for payment of spousal support. 1 This statutory
right does not distinguish between temporary and post-judgment support.2

■ PRACTICE TIP:

This remedy should not be ignored, especially when the level of conflict is high and the supporting
spouse’s source of income is uncertain, is overseas or otherwise not easily susceptible to garnishment. If
there is a source of cash that could disappear, counsel should consider asking to secure that cash in an
account that can be accessed by the supported spouse upon proper proof of arrears as security for temporary
or post-judgment support. Commentary by Diana Richmond

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

11 Fam. Code § 4339.

22 Cf. former Civ. Code § 4801(a) (limited to support orders in judgment); see also Fam. Code § 290 (broad judicial discretion to shape
enforcement remedies).
 2 California Family Law Prac & Proc 2d ed. § 51.24

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART B.
TEMPORARY SUPPORT

§ 51.24 Modification and Revocation of Order

The court may modify or terminate a temporary support order at any time except as to any amount that may have
accrued prior to the date on which the request for order was filed. 1 Any modification must be based on a request for
order to modify that is filed after entry of the order to be modified. 2 A change of circumstances is required for
modification of a temporary support order. 3 However, the change of circumstances rule is not to be mechanistically
applied, and in unusual circumstances, modification may be granted even if circumstances have not changed. 4 For
example, when the trial court failed to consider the husband’s domestic violence conviction when it ordered the
wife to pay temporary spousal support, termination of the support award on the basis of that conviction was
appropriate, even though there was no change of circumstances as courts previously viewed change of
circumstances.5

By statute, a temporary support order may not be modified as to an amount that accrued before the date the request
for modification was filed.6 Nonetheless, several cases have carved out an exception to allow modification
retroactive to the date of the temporary support order, if the trial court expressly reserves jurisdiction “such that the
parties’ clear expectation is the original support award is not final.” 7

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

11 Fam. Code § 3603.

22 In re Marriage of Gruen (2011) 191 Cal. App. 4th 627, 640, 120 Cal. Rptr. 3d 184.

33 In re Marriage of Samson (2011) 197 Cal. App. 4th 23, 127 Cal. Rptr. 3d 857 (wife’s cohabitation did not justify significant reduction or
termination of $9,059 monthly temporary support award, when friend’s monthly contribution of $800 per month did not substantially reduce
wife’s need for support).

44 In re Marriage of Freitas (2012) 209 Cal. App. 4th 1059, 1069, 147 Cal. Rptr. 3d 453.

55 In re Marriage of Freitas (2012) 209 Cal. App. 4th 1059, 1069, 147 Cal. Rptr. 3d 453.

66 Fam. Code § 3603; In re Marriage of Gruen (2011) 191 Cal. App. 4th 627, 639–640, 120 Cal. Rptr. 3d 184 (regardless of court’s intent or
label, “interim” support order was not retroactively modifiable). See also In re Marriage of Williamson (2014) 226 Cal. App. 4th 1303, 172
Cal. Rptr. 3d 699 (trial court impermissibly retroactively modified husband’s temporary support obligation when it ordered that payments
would come from general community funds rather than husband’s share).

77 Last v. Superior Court (2023) 94 Cal. App. 5th 30, 311 Cal. Rptr. 3d 791 (court reserved jurisdiction to “reallocate” temporary support if it
found that premarital agreement waiving spousal support was enforceable); In re Marriage of Spector (2018) 24 Cal. App. 5th 201, 208–210,
233 Cal. Rptr. 3d 855; In re Marriage of Freitas (2012) 209 Cal. App. 4th 1059, 1073–1074, 147 Cal. Rptr. 3d 453.
 Page 71 of 171
§ 51.24 Modification and Revocation of Order

End of Document
 2 California Family Law Prac & Proc 2d ed. §§ 51.25–51.29

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART B.
TEMPORARY SUPPORT

§§ 51.25–51.29 [Reserved]

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document
 2 California Family Law Prac & Proc 2d ed. § 51.30

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART C. POST-
JUDGMENT SUPPORT > Subpart 1. Factors Affecting Post-judgment Support Orders

§ 51.30 Discretion of Court to Order Support

In a judgment of dissolution of marriage or legal separation of the parties, the court may order a party to pay for the
support of the other party any amount, and for any period of time, that the court may deem just and reasonable,
based on a consideration of all of the factors of Family Code § 4320, including but not limited to, standard of living
established during the marriage.1 The grant or denial of permanent spousal support and its amount and duration are
matters that rest within the sound discretion of the trial court, and fall within the court’s equitable jurisdiction.
Although not unlimited, the trial court’s discretion in determining support is broad. 2

■ PRACTICE TIP:

One of the most common mistakes that counsel make in requesting permanent spousal support is the focus
exclusively on the “marital standard of living”. Marital standard of living is only one of many factors that
the court must consider in exercising its discretion to determine an appropriate amount of permanent spousal
support, if any. The court must consider all of the factors listed in Family Code § 4320. In the vast majority
of cases, neither party will continue to live at the standard of living the parties enjoyed prior to separation.
Just having to pay for two residences instead of one on what was the total income of the family income often
stretches the parties financially. It is very upsetting to a supported spouse to be told that they are entitled to
the “marital standard of living” and then to receive an award which falls short of making that spouse able to
live at the marital standard of living. If counsel has made such a claim and the court makes a proper order

11 Fam. Code § 4330.

22 See In re Marriage of Morrison (1978) 20 Cal. 3d 437, 454, 143 Cal. Rptr. 139, 573 P.2d 41; In re Marriage of Plescia (1997) 59 Cal.
App. 4th 252, 258, 69 Cal. Rptr. 2d 120 (party seeking equitable grant of spousal support must be willing to grant equitable defense of laches
in same controversy); see also In re Marriage of Epstein (1979) 24 Cal. 3d 76, 89–90, 154 Cal. Rptr. 413, 592 P.2d 1165; In re Marriage of
Bukaty (1986) 180 Cal. App. 3d 143, 150, 225 Cal. Rptr. 492.
 Page 74 of 171
§ 51.30 Discretion of Court to Order Support

based on all the factors of Family Code § 4320, which is less than what that spouse expected, based on only
the marital standard of living, that disappointed client may express their disappointment in an action against
counsel. Commentary by Kathryn Kirkland

However, the court’s discretion must be exercised with reference to the showing made and not arbitrarily. 3 Further,
the criteria set forth in Family Code Section 43204 must all be recognized and applied correctly. 5 A grossly
inadequate or grossly excessive spousal support order is subject to reversal as an abuse of discretion. 6

■ PRACTICE TIP:

In the request for order for permanent support, it is helpful to the court if counsel has submitted an
analysis of all the factors in Family Code § 4320. Often there are factors that are not applicable to the facts
of the case, in which case counsel notes that factor by saying “not applicable”. There are, however, other
facts that support the award of spousal support and those facts should be set forth in detail. It is not helpful
to the court to have to read a “laundry list” of all the activities that the parties did during the marriage, such
as vacations, expensive cars, dining out, or even large investments, etc., trying to show the “marital standard
of living”. Marital standard of living is only defined as “middle class” or “wealthy” or other very general
indications of a style of living. The court is already familiar with the assets and liabilities and the general
manner of living of the parties from the pleadings and the evidence and the current financial situation of
each of the parties. The permanent order is going forward. Concentrate on the real needs of the supported
spouse and/or the ability to pay of the supporting spouse. Use the applicable factors in Family Code § 4320
to show how those factors provide the justification for the orders requested. Commentary by Kathryn
Kirkland and Sandra L. Mayberry

The court may delegate certain data-gathering functions to a special master or referee 7 for the purpose of
determining the proper spousal support order. However, absent a stipulation of the parties, it is an improper
delegation of judicial authority for the special master to make binding factual findings or judicial determinations.
The court itself must make these determinations, usually on the receipt of a report containing findings and
recommendations of the special master. The court may then either adopt the report as its own or modify it as
appropriate.8

33 In re Marriage of Kelley (1976) 64 Cal. App. 3d 82, 93, 134 Cal. Rptr. 259; see In re Marriage of Teegarden (1986) 181 Cal. App. 3d 401,
409–410, 226 Cal. Rptr. 417.

44 See §§ 51.31–51.39, 51.44.

55 In re Marriage of Geraci (2006) 144 Cal. App. 4th 1278, 51 Cal. Rptr. 3d 234; In re Marriage of Watt (1989) 214 Cal. App. 3d 340, 347,
262 Cal. Rptr. 783; In re Marriage of Fransen (1983) 142 Cal. App. 3d 419, 425, 190 Cal. Rptr. 885.

66 In re Marriage of Ramer (1986) 187 Cal. App. 3d 263, 273, 231 Cal. Rptr. 647.

77 See In re Marriage of Olson (1993) 14 Cal. App. 4th 1, 6–7 n.4, 17 Cal. Rptr. 2d 480.

88 In re Marriage of Olson (1993) 14 Cal. App. 4th 1, 8, 17 Cal. Rptr. 2d 480.

 Page 75 of 171
§ 51.30 Discretion of Court to Order Support

■ PRACTICE TIP:

Referring a “data-finding functions” to a special master or referee is very rare solely as an adjunct to the
process of determining a permanent spousal support order. By the time the dissolution process has reached a
point for the determination of a permanent spousal support order, all the financial facts for both the
supported spouse and the supporting spouse have been presented to the court and the community estate has
been divided. Under those circumstances, there is no “data-finding function” for a special master or referee
to do. Commentary by Kathryn Kirkland

If temporary support was ordered (see Pt. B), the determination of permanent spousal support at trial must be de
novo, based on the circumstances existing at the time of the trial. More or less spousal support than the amount
ordered pendente may be ordered as post-judgment support without a showing of changed circumstances. 9

Courts have sometimes used schedules or formulas based solely on income to determine temporary support ( see §
51.13). It is inappropriate to use these calculation methods in setting permanent spousal support because the many
other factors under Family Code Section 4320 must also be considered.1010 The same is true of computer software
programs that are used to compute temporary spousal support using income data only. 1111 Fixing permanent spousal
support simply by the use of a computer program is an abdication of judicial responsibility because permanent
spousal support must be fixed only after consideration of the applicable factors set forth in Family Code Section
4320.1212

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

99 In re Marriage of McNaughton (1983) 145 Cal. App. 3d 845, 849–850, 194 Cal. Rptr. 176.

1010 See In re Marriage of Burlini (1983) 143 Cal. App. 3d 65, 69, 191 Cal. Rptr. 541; see also In re Marriage of Schulze (1997) 60 Cal.
App. 4th 522–528, 70 Cal. Rptr. 2d 488; In re Marriage of Zywiciel (2000) 83 Cal. App. 4th 1078, 100 Cal. Rptr. 2d 242.

1111 See Fam. Code § 3830; Cal. Rules of Ct., Rule 5.275; § 51.13.

1212 In re Marriage of Schulze (1997) 60 Cal. App. 4th 519, 523, 527, 70 Cal. Rptr. 2d 488. In re Marriage of Olson (1993) 14 Cal. App. 4th
1, 5–6 n.3, 9, 17 Cal. Rptr. 2d 480 (but approving court’s use of software on facts of case).
 2 California Family Law Prac & Proc 2d ed. § 51.31

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART C. POST-
JUDGMENT SUPPORT > Subpart 1. Factors Affecting Post-judgment Support Orders

§ 51.31 Statutory Factors; Family Code Section 4320

In ordering spousal support, the court must consider all of the following circumstances of the parties: 1
1. The extent to which the earning capacity of each spouse is sufficient to maintain the standard of living
established during the marriage taking into account all of the following; 2
a. The marketable skills of the supported party; the job market for those skills; the time and expenses
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 other, more marketable skills or
employment.
b. The extent to which the supported party’s present or future earning capacity is impaired by periods of
unemployment that were incurred during the marriage to permit the supported party to devote time to
domestic duties.
2. The extent to which the supported spouse contributed to the attainment of an education, training, a career
position, or a license by the other spouse;3
3. The supporting spouse’s ability to pay spousal support, taking into account the supporting spouse’s earning
capacity, earned and unearned income, assets, and standard of living; 4
4. The needs of each party, based on the standard of living established during the marriage; 5
5. The obligations and assets, including the separate property, of each party; 6
6. The duration of the marriage;7

11 See In re Marriage of Ciprari (2019) 32 Cal. App. 5th 83, 242 Cal. Rptr. 3d 900 (court erred in awarding spousal support in amount
insufficient to maintain standard of living enjoyed during marriage and in amount less than husband’s ability to pay, without explaining why
its award was just and reasonable).

22 Fam. Code § 4320(a); see §§ 51.32–51.34.

33 Fam. Code § 4320(b); see § 51.35.

44 Fam. Code § 4320(c); see §§ 51.32, 51.33, 51.36.

55 Fam. Code § 4320(d); see §§ 51.32, 51.34.

66 Fam. Code § 4320(e); see § 51.36.

77 Fam. Code § 4320(f); see § 51.37.

 Page 77 of 171
§ 51.31 Statutory Factors; Family Code Section 4320

7. The ability of the supported spouse to engage in gainful employment without interfering with the interests
of dependent children in the custody of the spouse;8
8. The age and health of the parties;9
9. Documented evidence of any history of domestic violence between the parties or perpetrated by either
party against either party’s child;1010
10. The immediate and specific tax consequences to each party; 1111
11. The balance of the hardships to each party;1212

12. The goal that the supported party must be self-supporting within a reasonable period of time, with a
“reasonable period of time” generally being one-half the length of the marriage (except with respect to a
marriage of long duration, as described in Family Code Section 4336),1313 although the court retains
discretion to order support for a greater or lesser length of time, based on any of the other factors listed in
Family Code Section 4320 and the parties’ circumstances;1414 and
13. The criminal conviction of an abusive spouse;1515
14. Any other factors the court deems just and equitable.1616

Under the last “catch-all” category, the court may consider practically everything that has a legitimate bearing on
the present and prospective matters relating to the lives of both parties. 1717 Culpability or fault in having caused the
breakup of the marital relationship is no longer a factor to be considered in ordering spousal support, 1818 unless that
fault is related to domestic violence.1919

88 Fam. Code § 4320(g); see § 51.34.

99 Fam. Code § 4320(h); see § 51.38.

1010 Fam. Code § 4320(i); see § 51.44.

1111 Fam. Code § 4320(j); see ch. 160.

1212 Fam. Code § 4320(k).

1313 See In re Marriage of West (2007) 152 Cal. App. 4th 240, 251, 60 Cal. Rptr. 3d 858 (inapplicability of “one-half the length of
marriage” rule to marriage of long duration).

1414 Fam. Code § 4320(l); In re Marriage of Rising (1999) 76 Cal. App. 4th 472, 479; 90 Cal. Rptr. 2d 380 (no abuse of discretion to
conclude that “marital standard of living” is of less weight many years after divorce than at time of separation).

1515 Fam. Code § 4320(m); see § 51.44.

1616 Fam. Code § 4320(n); see § 51.39.

1717 In re Marriage of Chapman (1987) 191 Cal. App. 3d 1308, 1313, 237 Cal. Rptr. 84; see, e.g., In re Marriage of Shaughnessy (2006) 139
Cal. App. 4th 1225, 1240–1244, 43 Cal. Rptr. 3d 642 (in modification case, court could consider monetary gifts to supported spouse).

1818 In re Marriage of Rosan (1972) 24 Cal. App. 3d 885, 892, 101 Cal. Rptr. 295; see also Fam. Code § 2335 (evidence of misconduct
generally irrelevant and inadmissible in dissolution proceedings).

1919 See In re Marriage of Schu (2016) 6 Cal. App. 5th 470, 211 Cal. Rptr. 3d 413 (rejecting wife’s argument that court should not have
admitted evidence of her fault, when evidence was relevant to wife’s continuing emotional abuse of her children).
 Page 78 of 171
§ 51.31 Statutory Factors; Family Code Section 4320

When making an order for spousal support, the court may advise the support recipient of the need to make
reasonable efforts to assist in providing for the recipient’s own support needs, taking into account the particular
circumstances the court considered under Family Code Section 4320, unless, in the case of a marriage of long
duration as provided for in Family Code Section 4336 (see § 51.37) the court decides this warning is inadvisable.2020

The Section 4320 factors, apart from need and ability to pay, do not apply to temporary support orders. 2121

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

2020 Fam. Code § 4330(b).

2121 In re Marriage of Samson (2011) 197 Cal. App. 4th 23, 127 Cal. Rptr. 3d 857.
 2 California Family Law Prac & Proc 2d ed. § 51.32

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART C. POST-
JUDGMENT SUPPORT > Subpart 1. Factors Affecting Post-judgment Support Orders

§ 51.32 Standard of Living Established During Marriage

In ordering spousal support, the court must consider the standard of living established by the parties during
marriage in determining the parties’ needs. 1 The higher the standard of living enjoyed by the parties during
marriage and the lower the ability of the supported spouse to maintain that standard, the greater is the need for
support.2 The court must make specific factual findings with respect to the marital standard of living. 3

“Marital standard of living” is a general description of the station in life that the parties had achieved by the date of
separation. It is satisfied by the everyday understanding of the term in its ordinary sense, that is upper, middle, or
lower income.4 Being retired may be part of the marital standard of living.5

■ PRACTICE TIP:

Marital standard of living can be measured by an analysis of available income after taxes during the
marriage or by the parties’ spending during the same time period, or by both. Presenting both perspectives
gives the trial judge a fuller picture of the parties’ living means and habits. Marital standard of living can be
an expensive use of forensic accountants, but in high income cases, this analysis can be highly persuasive.
The location, value and amenities of the family home is relevant, as are the family’s travel habits, but these
are anecdotal compared to the more careful analysis of overall income available and the family’s actual

11 Fam. Code § 4320(a), (d); see §§ 51.33, 51.34.

22 See In re Marriage of Andreen (1978) 76 Cal. App. 3d 667, 671–672, 143 Cal. Rptr. 94; In re Marriage of Wright (1976) 60 Cal. App. 3d
253, 256, 131 Cal. Rptr. 870.

33 Fam. Code § 4332; see Form in § 51.103.

44 In re Marriage of Smith (1990) 225 Cal. App. 3d 469, 491, 274 Cal. Rptr. 911.

55 In re Marriage of McLain (2017) 7 Cal. App. 5th 262, 271.

 Page 80 of 171
§ 51.32 Standard of Living Established During Marriage

expenditures. It is important to note that the marital standard of living as is commonly perceived can be an
inadequate description of the parties’ actual behavior. On the one extreme, the parties may have spent
significantly in excess of the income available, financing such spending by incurring substantial debt on, for
example, credit cards or by refinancing the family home and using the equity for more spending. On the
other extreme, the parties may have had significant income but chose not to use much of it for consumer
spending, such as expensive vehicles, clothes, dining out, travel and other activities, deciding rather to invest
their disposable income in stocks and bonds or other investment opportunities. Commentary by Diana
Richmond and Kathryn Kirkland

The marital standard of living is not an absolute measure of reasonable need, but merely the reference point for
determining need and support. Although it is an important factor, all of the other applicable circumstances
enumerated in Family Code Section 4320 must also be considered.6 After considering these factors, the court may
award support at, above, or less than what is required to maintain the marital standard of living, in order to achieve
a just and reasonable rate under the facts of the case.7

If the marital standard of living was deliberately depressed because only one spouse was employed while the other
was absent from the work force pursuing studies, spousal support may not be denied to the employed spouse solely
because their standard of living did not decline after separation. To limit the employed spouse to the marital
standard of living would be to make irrelevant their contributions to the student spouse’s education and career. 8
Conversely, the parties may have been living beyond their means during marriage. In such a case, spousal support
should be based on the reasonable, rather than the actual, marital standard of living, given the resources available to
the parties during marriage.9 A trial court is not required to consider a supporting spouse’s postseparation income in
awarding spousal support, if a spousal support amount based on the marital income level is sufficient to maintain
the marital standard of living.1010 “Equality of postseparation income” (similar postseparation standards of living) is

66 In re Marriage of Grimes & Mou (2020) 45 Cal. App. 5th 406, 258 Cal. Rptr. 3d 576; In re Marriage of Ackerman (2006) 146 Cal. App.
4th 191, 208, 52 Cal. Rptr. 3d 744; In re Marriage of Cheriton (2001) 92 Cal. App. 4th 269, 303, 111 Cal. Rptr. 2d 755; In re Marriage of
Smith (1990) 225 Cal. App. 3d 469, 484–485, 274 Cal. Rptr. 911; In re Marriage of Ostler & Smith (1990) 223 Cal. App. 3d 33, 48, 272 Cal.
Rptr. 560 (contributions to supporting spouse’s education justified spousal support in excess of that needed to sustain standard of living
attained during marriage).

77 In re Marriage of Grimes & Mou (2020) 45 Cal. App. 5th 406, 258 Cal. Rptr. 3d 576; In re Marriage of Williamson (2014) 226 Cal. App.
4th 1303, 1316, 172 Cal. Rptr. 3d 699.

88 In re Marriage of Watt (1989) 214 Cal. App. 3d 340, 351–352, 262 Cal. Rptr. 783; see Fam. Code § 4320(b) (discussed further in § 51.35);
see also In re Marriage of Sullivan (1984) 37 Cal. 3d 762, 767–768, 209 Cal. Rptr. 354, 691 P.2d 1020.

99 See In re Marriage of Smith (1990) 225 Cal. App. 3d 469, 485–486, 274 Cal. Rptr. 911; see also In re Marriage of Williamson (2014) 226
Cal. App. 4th 1303 (trial court properly set spousal support in amount lower than that needed to maintain marital standard of living, when
parties’ lavish lifestyle had been subsidized by payments from husband’s parents and those payments had stopped); In re Marriage of
Ackerman (2006) 146 Cal. App. 4th 191, 208, 52 Cal. Rptr. 3d 744 (court properly determined marital standard of living on basis of family’s
average income, rather than on expenses, when spouses lived beyond their means during marriage); In re Marriage of Weinstein (1992) 4
Cal. App. 4th 555, 565–566, 5 Cal. Rptr. 2d 558 (court acted properly in determining marital standard of living based on income rather than
on expenses because it could determine that parties’ actual expenditures were not reasonable); but see In re Marriage of De Guigne (2002) 97
Cal. App. 4th 1353, 1362, 1367, 119 Cal. Rptr. 2d 430 (when opulent marital standard of living was achieved in part through liquidation of
obligor’s inherited assets, court properly based support awards on obligor’s total assets).

1010 In re Marriage of Ackerman (2006) 146 Cal. App. 4th 191, 209, 52 Cal. Rptr. 3d 744.
 Page 81 of 171
§ 51.32 Standard of Living Established During Marriage

not included among the statutory factors for setting spousal support. 1111 Consideration of available income rather
than expenditures is also proper if the parties lived frugally and allocated significant income to savings and
investment. A spouse should not be deprived of the accustomed lifestyle just because it involved the purchase of
stocks and bonds rather than personal luxuries.1212

The marital standard of living is of less significance in a short-term marriage in which the joint efforts of the parties
had little or nothing to do with achieving the standard. The right of an unemployed spouse to be maintained at the
marital standard of living derives from the joint efforts of the spouses to achieve a certain standard over a
significant period of time, in which case, the earner spouse ought not to solely reap the benefits on divorce. 1313

The supported spouse is not guaranteed enough support to live at the marital standard of living if the supporting
spouse’s ability to pay is insufficient to maintain both parties at that level. 1414 Often, economic realities compel a
reduction in the standard of living for both parties. 1515 Unless the court makes specific findings as to whether the
amount of support ordered is or is not sufficient to meet the supported spouse’s reasonable needs, there will be no
basis from which to determine whether an increase in spousal support is warranted if the supporting spouse’s
income increases.1616

■ PRACTICE TIP:

It is the responsibility of counsel to obtain a finding from the court as to whether the reasonable needs of
the supported spouse are being met, and, if not, a finding as to what amount would meet the reasonable
needs. “Reasonable needs” is not the same as marital standard of living. “Reasonable needs” reflects the
current situation of the supported party, which may differ from what was necessary during the marriage,
especially if substantial time has passed since the parties separated. By obtaining a finding of what amount
of support, counsel establish grounds for an upward modification at such time as the supporting spouse has
increased income. Commentary by Kathryn Kirkland

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

1111 In re Marriage of Ackerman (2006) 146 Cal. App. 4th 191, 209, 52 Cal. Rptr. 3d 744; see Fam. Code 4320.

1212 In re Marriage of Winter (1992) 7 Cal. App. 4th 1926, 1932–1933, 10 Cal. Rptr. 2d 225; see In re Marriage of Drapeau (2001) 93 Cal.
App. 4th 1086, 1098, 114 Cal. Rptr. 2d 6 (when supporting spouse’s ability to pay reasonable level of support is not limiting factor, court
should consider parties’ practice of saving substantial portion of earnings as element in their marital standard of living).

1313 See In re Marriage of Huntington (1992) 10 Cal. App. 4th 1513, 1520–1521, 14 Cal. Rptr. 2d 1 (wife in short-term marriage is not
entitled to be maintained at affluent marital standard of living when standard derived from husband’s inherited wealth).

1414 See, e.g., In re Marriage of Epstein (1979) 24 Cal. 3d 76, 89–90, 154 Cal. Rptr. 413, 592 P.2d 1165.

1515 See, e.g., In re Marriage of Morrison (1978) 20 Cal. 3d 437, 455, 143 Cal. Rptr. 139, 573 P.2d 41.
1616 In re Marriage of Smith (1990) 225 Cal. App. 3d 469, 491, 274 Cal. Rptr. 911; see ch. 52 (modification based on increased earnings of
supporting spouse may depend on whether original order was sufficient to maintain supported spouse at marital standard of living); see also
Form in § 51.103.
 2 California Family Law Prac & Proc 2d ed. § 51.33

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART C. POST-
JUDGMENT SUPPORT > Subpart 1. Factors Affecting Post-judgment Support Orders

§ 51.33 Supporting Spouse’s Ability to Pay

[1] Computation of Income

In ordering spousal support, the court must consider the supporting spouse’s ability to pay, taking into account
their earning capacity, earned and unearned income, assets, and standard of living. 1
There are no statutes that address the computation of income for the purpose of determining spousal support.
The statewide uniform child support guideline specifies what is to be included in gross income and what
deductions are allowed to determine net income for the purpose of computing child support. 2 Over time, courts
have essentially adopted the child support definitions of income to apply to spousal support, although there is
no formal authority for the proposition.

■ PRACTICE TIP:

Despite the lack of a statute defining income for spousal support purposes, in practice all of the
categories of income in Family Code Section 4058 for child support are recognized for spousal support
as well. Appellate courts have had ample time to make changes in spousal support awards based on a
calculation of available income different from that of the child support calculation and have not done
so. Commentary by Diana Richmond and Kathryn Kirkland

The court may consider investment income in determining the supporting spouse’s ability to pay. 3 Income from
property that was originally part of the community estate may also properly be considered for either spouse. 4
Thus, income from a pension that was community property but is distributed entirely to the earner spouse in an
equal division of assets may be considered as property from which spousal support may be paid. 5

11 Fam. Code § 4320(c); see also Fam. Code § 4320(a).

22 See Fam. Code §§ 4058, 4059, discussed in ch. 41.

33 In re Marriage of Reynolds (1998) 63 Cal. App. 4th 1373, 1380, 74 Cal. Rptr. 2d 636 ; In re Marriage of Olson (1993) 14 Cal. App. 4th 1,
10–13, 17 Cal. Rptr. 2d 480.

44 In re Marriage of Epstein (1979) 24 Cal. 3d 76, 91 n.14, 154 Cal. Rptr. 413, 592 P.2d 1165.

55 In re Marriage of Cheriton (2001) 92 Cal. App. 4th 269, 305, 111 Cal. Rptr. 2d 755; In re Marriage of White (1987) 192 Cal. App. 3d
1022, 1026–1029, 237 Cal. Rptr. 764; see In re Marriage of Olson (1993) 14 Cal. App. 4th 1, 10–13, 17 Cal. Rptr. 2d 480 (court may
consider income received from a pension or other retirement plan whether or not it was originally part of community estate).
 Page 83 of 171
§ 51.33 Supporting Spouse’s Ability to Pay

■ PRACTICE TIP:

In considering investment income, counsel should examine not just actual dividends and interest
received, but the rate of return on investments, including historic growth rates, taxability and inflation.
Courts will also consider whether the investment profile generates a reasonable amount of income,
consistent with prudent investing. Many investment portfolios are configured to maximize growth of
assets, which often results in reducing the amount of income from the investments. Such a
configuration can be construed as an under-performing investment, which could have a greater return
imputed to it. Commentary by Diana Richmond and Kathryn Kirkland

Other forms of income from employment, such as income from the future exercise of stock options, also may
be considered in awarding spousal support. However, a trial court may not base the support award on a fixed
percentage of future stock option income if doing so results in an award that substantially exceeds the parties’
marital standard of living. This might occur, for example, if the underlying value of the stock is rapidly
increasing. Instead, the trial court must make an award that is “just and equitable,” using the marital standard of
living as a reference point against which other statutory factors must be weighed. Once having done this, the
court may make a percentage award of future exercised option income so long as it sets a maximum amount
proportionate to its findings concerning the marital standard of living. 6

■ PRACTICE TIP:
6.1
In re Marriage of Macilwaine (2108) 26 Cal. App. 5th 514.

The financial issues surrounding stock options have evolved rapidly in the last 20 years. In many
cases now, the stock options are divided as property, giving both parties access to funds for their own
use. In the case where stock options are part of the compensation of the supporting spouse, a much
more common plan currently, the “bonus” chart included in the child support computer programs can
establish an amount of additional support payable to the supported spouse when the supporting spouse
receives awards of stock as well as awards of cash bonuses. 6.16.1 However, it is also important to
consider whether cap on the stock options or restricted stock units is important, as a company issuing
the stock can become highly successful post Judgment, and the payee could be paid well beyond the
marital standard of living. The bonus chart or the Ostler/Smith provisions can be capped as to spousal
support but not child support. Commentary by Diana Richmond, Kathryn Kirkland, and Sandra L.
Mayberry

Apart from imputing income from assets that traditionally are considered “income producing,” there is
authority—from a case that considered child support—that a court may also consider imputing income to a
historically non-income producing asset, such as real estate. However, the decision to impute “rests on an
analysis that is particularly fact intensive[, and] [f]actors which do not eliminate discretion may significantly
affect whether it should be exercised.”7
A trial court has discretion to determine whether principal payments on loans against income-producing
properties or business debt should be deducted from a spouse’s income available for support, even though the

66 In re Marriage of Kerr (1999) 77 Cal. App. 4th 87, 95, 91 Cal. Rptr. 2d 374.
6.1

77 In re Marriage of Destein (2001) 91 Cal. App. 4th 1385, 1396, 111 Cal. Rptr. 2d 487.
 Page 84 of 171
§ 51.33 Supporting Spouse’s Ability to Pay

payments increase the obligor spouse’s net worth. Such principal payments may be deducted “if [the court]
finds, based on substantial evidence, that the payment[s] reasonably and legitimately reduce the spouse’s net
income available for support, considering the totality of the relevant circumstances.” 7.17.1 These circumstances
include whether the payment constitutes an ordinary and necessary business expense, whether disallowing the
deduction would work a substantial hardship on the payor spouse, whether the payments are excessive, whether
the encumbered property was acquired for the purpose of lowering income available for support, and whether
the payments are unnecessary for the operation of the business at a reasonable level. 8

Courts possess broad discretion to exclude, include, or partially include contributions to individual retirement
plans, and earnings or accruals of such plans not actually withdrawn, as income available for determining
spousal support.9 Thus, for example, one reported decision has held that a trial court has discretion to determine
whether to consider as income available for spousal support nonmandatory contributions made to an individual
retirement plan, accruals, or accrued earnings of that plan that are not withdrawn and—once no penalty is
incurred—even reasonable withdrawals from the principal of a retirement plan. 1010 However, it has been held
that only under “extreme circumstances” would it be appropriate to base a spousal support order on funds in a
retirement plan that, if withdrawn, would be subject to a mandatory penalty. 1111 Similarly, another court has
observed that it would be improper to require a party to invade or exhaust the principal of their retirement assets
to pay spousal support, given that “only investment income, not investment principal, should be available to
pay spousal support.”1212

■ PRACTICE TIP:

Despite comments in In re Marriage of Reynolds to the contrary, at some point in life after
retirement, it seems reasonable to include investment principal. For example, at age 70½, one must
withdraw from an IRA, (the Required Minimum Distribution or RMD) based on an actuarial estimate
of one’s lifespan. The underlying concept is that the entire account of the IRA will have been drawn
down to zero by the end of that estimated life span. Arguably, similar principles should apply to the
draw-down on retirement assets available to each spouse following retirement age. As more and more

7.17.1 In re Marriage of Deluca (2020) 45 Cal. App. 5th 184, 198–99, 258 Cal. Rptr. 3d 517; see also In re Marriage of Pletcher (2021) 68
Cal. App. 5th 906 (court erred in including business expenses in payor’s income, on ground that expenses were not related to payor’s
“primary” business).

88 In re Marriage of Deluca (2020) 45 Cal. App. 5th 184, 199, 258 Cal. Rptr. 3d 517.

99 In re Marriage of Olson (1993) 14 Cal. App. 4th 1, 3, 11–13, 17 Cal. Rptr. 2d 480; see also In re Marriage of Blazer (2009) 176 Cal. App.
4th 1438, 1447–1448, 99 Cal. Rptr. 3d 42 (court did not abuse its discretion by excluding funds used to diversify husband’s business from
husband’s income).

1010 In re Marriage of Olson (1993) 14 Cal. App. 4th 1, 13, 17 Cal. Rptr. 2d 480; see In re Marriage of Terry (2000) 80 Cal. App. 4th 921,
931–932, 95 Cal. Rptr. 2d 760 (Fam. Code § 4322 compelled termination of spousal support when former wife had sufficient income to meet
support needs, including availability of funds from retirement account, from which withdrawal could be made without penalty).

1111 In re Marriage of Olson (1993) 14 Cal. App. 4th 1, 12–13, 17 Cal. Rptr. 2d 480.

1212 In re Marriage of Reynolds (1998) 63 Cal. App. 4th 1373, 1380, 74 Cal. Rptr. 2d 636 (because amount of spousal support order
exceeded husband’s net income from any source, appellate court agreed that if he complied with order, he would improperly be required to
invade or exhaust his retirement assets in order to pay wife); but cf. In re Marriage of Epstein (1979) 24 Cal. 3d 76, 91 n.14, 154 Cal. Rptr.
413, 592 P.2d 1165 (even if future award of spousal support must come from supporting party’s half of community property [retirement
benefits] there is no requirement excluding such property as source of support; but supporting party’s financial position may be reexamined if
necessary at time of retirement in light of both parties’ circumstances).
 Page 85 of 171
§ 51.33 Supporting Spouse’s Ability to Pay

couples who are near retirement are dissolving their marriages, incorporating the use of retirement
assets into spousal support orders is becoming more prevalent.

Another aspect of spousal support for older couples dissolving their marriage is that it is now much
more common for one or both spouses to continue working after the so-called “retirement age”. As a
result of the economic crash of 2008, many couples saw their retirement savings plummet in value. Or,
some “retirees” get bored and continue to work because they enjoy the job they have or now have the
opportunity to engage in other income-producing activity, which may not be as remunerative as the
prior occupation. All these factors must be considered in making a presentation to a court regarding
permanent spousal support, regardless of which spouse the practitioner represents. Commentary by
Diana Richmond and Kathryn Kirkland

Gambling winnings of the supporting spouse are not considered as income for the purposes of setting support.
Attribution of substantial future income to gambling activity encourages or compels the supporting spouse to
engage in that activity, with the danger of dissipating other income from which support is to be paid. 1313

Fluctuating earnings from employment may pose special issues. For example, in one case a husband’s law
practice earnings fluctuated monthly. A trial court used his earnings for the year preceding the wife’s filing of a
dissolution petition. For purposes of support and attorney fees, the court ignored the husband’s later earnings,
which declined to little more than half of those reported by the husband for the year preceding his wife’s
divorce filing. Although the court of appeal characterized the husband’s earnings as fluctuating and volatile, the
trend was steadily downward after the dissolution petition was filed. While the trial court was understandably
wary of this decline in income, its apparent suspicions did not warrant its use of out-of-date income figures.
Instead, if supported by the evidence, the court should have made a finding of the husband’s earning capacity
under Fam. Code §§ 4058(b) and 4320(c).1414

■ PRACTICE TIP:
15
See In re Marriage of Ostler and Smith (1990) 223 Cal. App. 3d 33, 272 Cal. Rptr. 560 , discussed in ch. 41. Cf. In re
Marriage of Minkin (2017) 11 Cal. App. 5th 939 (court interpreted term “annual bonus,” as used in additional support
provision of stipulated judgment, to include only discretionary performance-based payments, rather than all compensation
above husband’s base salary); In re Marriage of Samson (2011) 197 Cal. App. 4th 23, 127 Cal. Rptr. 3d 857 (court erred in
treating husband’s lump sum severance pay after lay-off as bonus subject to Ostler & Smith percentage).

One of the issues regarding income is the treatment of income irregularly received or unevenly
distributed. For example, if a supporting spouse receives a regular salary or draw and an annual or
periodic bonus or other income distribution, it is appropriate to base monthly spousal support on the
regular income and assign as additional spousal support a percentage of the bonus. 1515 In this manner
the monthly spousal support is geared to the actual, predictable cash flow available, and the supported
spouse shares proportionally in the unpredictable income. When this procedure is adopted, it is
common to adopt an overall ceiling on the income of the supported spouse, predicated on the available
income during the marriage. See the discussion in the practice tip above regarding a cap on the
Ostler/Smith percentage. Commentary by Diana Richmond

1313 In re Marriage of Rosan (1972) 24 Cal. App. 3d 885, 891–892, 101 Cal. Rptr. 295.

1414 In re Marriage of Rosen (2002) 105 Cal. App. 4th 808.

15
 Page 86 of 171
§ 51.33 Supporting Spouse’s Ability to Pay

[2] Earning Capacity

Family Code Section 4320(a) and (c) requires the court to consider the parties’ earning capacity in setting
spousal support. The California Supreme Court has defined earning capacity as the income that a spouse is
reasonably capable of earning based on age, health, education, marketable skills, employment history, and the
availability of employment opportunities.1616 Historically, support has been based on earning capacity instead of
actual income only in cases of bad faith; that is, cases in which paying spouses deliberately attempted to avoid
their support obligations by quitting or refusing to seek or accept gainful employment, deliberately not applying
themselves to business, or intentionally depressing income to an artificial level. 1717

However, in recent cases, courts have rejected this bad-faith rule. Under this view, Family Code Section 4320
provides for consideration of earning capacity without the necessity of showing deliberate avoidance of
financial responsibility as a prerequisite. 1818 In one case dealing with both child and spousal support, the
California Supreme Court expressly reserved the question of whether a finding of bad faith is required in order
to apply the earning-capacity standard. 1919 However in a subsequent case dealing only with child support, the
Supreme Court specifically ruled that a finding of bad faith was no longer necessary to use the standard. 2020

■ PRACTICE TIP:
21
Fam. Code § 4058(b).

Courts are now readily giving force to the plain “earning capacity” language of Family Code Section
4320 for spousal support, just as for child support, for both the payor and payee, if earning capacity is
properly proven under the three-part test of: (1) ability, (2) willingness to work, and (3) opportunity to
work. Whereas for child support earning capacity is limited to situations in which its consideration is
“consistent with the child’s best interest,” 2121 the spousal support statute contains no such limitation. A
very practical approach for your client who has been out of the workforce for a long period is to have
him or her present a specific, detailed plan for education or a return to the workforce. Judges are much
more likely to consider minimal or no earning capacity findings if they believe a client has a “plan.”
Ideally, if your client can already start that plan prior to your final hearing or trial, it may make a big
difference in the outcome. In addition, it gives the paying party some concept that the other person is
and will be working towards supporting themselves or at least assisting in their support. Commentary

1616 In re Marriage of Simpson (1992) 4 Cal. 4th 225, 234, 14 Cal. Rptr. 2d 411, 841 P.2d 931.

1717 Philbin v. Philbin (1971) 19 Cal. App. 3d 115, 121, 96 Cal. Rptr. 408; see In re Marriage of Meegan (1992) 11 Cal. App. 4th 156, 163,
13 Cal. Rptr. 2d 799; In re Marriage of Regnery (1989) 214 Cal. App. 3d 1367, 1371, 263 Cal. Rptr. 243 (and cases cited therein); In re
Marriage of Sinks (1988) 204 Cal. App. 3d 586, 592–593, 251 Cal. Rptr. 379 (earning capacity used in case of early retirement taken for
purpose of avoiding support obligation); cf. In re Marriage of Johnson (1982) 134 Cal. App. 3d 148, 156–157, 184 Cal. Rptr. 444 (court
based support on earning capacity rather than actual earnings, without any consideration of the supporting spouse’s motive, because his
unemployment was due to alcoholism); see also ch. 41.

1818 See In re Marriage of Stephenson (1995) 39 Cal. App. 4th 71, 76, 82, 46 Cal. Rptr. 2d 8 (involving early retirement compelled by
economic circumstances); see also child support earning capacity cases discussed in ch. 41, § 41.07.

1919 See In re Marriage of Simpson (1992) 4 Cal. 4th 225, 233–234, 14 Cal. Rptr. 2d 411, 841 P.2d 931.

2020 Moss v. Superior Court (1998) 17 Cal. 4th 396, 424, 71 Cal. Rptr. 2d 215, 950 P.2d 59.
21
 Page 87 of 171
§ 51.33 Supporting Spouse’s Ability to Pay

by Diana Richmond and Sandra L. Mayberry

Even in cases of deliberate avoidance, earning capacity generally may not be based on an extraordinary work
regimen. Instead, it must be based on an objectively reasonable work schedule as it would exist at the time
when the determination is made. A reasonable regimen is dependent on all relevant circumstances, including
the choice of job available within a particular occupation, working hours, and working conditions. Established
employment norms such as the 40-hour work week are not controlling, but are pertinent to the determination. 2222
There must be evidence of an actual ability to work, legitimate earning opportunities, and specifics concerning
the amount that might be earned.2323
If a spouse has recently become unemployed through no fault of their own, the court should not immediately
make a spousal support order. Rather, the matter should be continued for a reasonable period of time to allow
the party to seek employment. At the end of the period, the court should determine the party’s good-faith efforts
in seeking employment.2424
A supporting spouse cannot retire prematurely in order to avoid paying spousal support. 2525 However, a spouse
who retires at the normal retirement age should not be required to continue working in order to pay a certain
level of support.2626 Likewise, a court may decline to consider the earning capacity of a supported spouse who is
retired and 65 years or older.2727

■ PRACTICE TIP:

What is “normal retirement age” has changed over the years. In some government and union
pensions which are defined benefit plans, “full retirement age” is a function of years of service or other
indicators of length of service and the age of the employee. These factors can be different for different
employees, making “full retirement age” different for different employees such as Mr. Shimkus (cited
below) who was a firefighter. Social Security has raised its “full retirement benefits” from age 65 in
increments to today’s age of 67. As noted above, required minimum distribution from IRAs is 70½.
Review of all forms of retirement benefits and their respective “full payment” dates or age limits on
distribution is necessary to determine actual income available to the parties. Advising clients about
when they can retire can be tricky, particularly where it will leave the supporting spouse with very

2222 In re Marriage of Simpson (1992) 4 Cal. 4th 225, 234–236, 14 Cal. Rptr. 2d 411, 841 P.2d 931; In re Serna, (2000) 85 Cal. App. 4th
482, 487, 102 Cal. Rptr. 2d 188.

2323 In re Marriage of Reynolds (1998) 63 Cal. App. 4th 1373, 1378, 74 Cal. Rptr. 2d 636.

2424 In re Marriage of Hurtienne (1981) 126 Cal. App. 3d 374, 379–380, 178 Cal. Rptr. 748 ; see In re Marriage of Rome (1980) 109 Cal.
App. 3d 961, 964–965, 167 Cal. Rptr. 351.

2525 In re Marriage of Sinks (1988) 204 Cal. App. 3d 586, 592–593, 251 Cal. Rptr. 379; In re Marriage of Stephenson (1995) 39 Cal. App.
4th 71, 78–81, 46 Cal. Rptr. 2d 8.

2626 Reynolds v. Reynolds (1998) 63 Cal. App. 4th 1373, 1378, 74 Cal. Rptr. 2d 636; see also In re Marriage of Shimkus (2016) 244 Cal.
App. 4th 1262, 198 Cal. Rptr. 3d 799 (court was required to weigh section 4320 factors in light of fact that husband retired from firefighter
job at usual retirement age for firefighter). Compare In re Marriage of Berman (2017) 15 Cal. App. 5th 914, 223 Cal. Rptr. 3d 604 (court did
not err in imputing business income to husband post-retirement, when husband transferred his business to his current wife for no
consideration and failed to present evidence that imputing business income would require him to continue working).

2727 In re Marriage of McLain (2017) 7 Cal. App. 5th 262, 271 (court could properly find that wife’s age and retirement outweighed wife’s
ability to become self-supporting).
 Page 88 of 171
§ 51.33 Supporting Spouse’s Ability to Pay

little. Commentary by Kathryn Kirkland and Sandra L. Mayberry

A trial court may not order spousal support that is based on an obligor’s earning capacity imputed from a
theoretical retirement scenario, instead of on the obligor’s actual current income. 2828
If the court finds that an obligor has structured ownership of their assets to avoid paying spousal support, the
court has discretion to look beyond the apparent form of ownership to determine the obligor’s true interest in
the assets and the availability of those assets in determining the obligor’s ability to pay. 2929
Earning capacity is discussed further with regard to child support in Chapter 41.

[3] Income of Subsequent Spouse or Partner

The income of a supporting spouse’s subsequent spouse or nonmarital partner may not be considered in
determining or modifying support.3030 This statute, Family Code Section 4323(b), which overturned prior case
law,3131 was added by 1993 legislation.3232

To comply with the Family Code Section 4323(b) prohibition against considering new mate income, the trial
court must eliminate from consideration all new mate income and all additional expenses resulting from
remarriage.3333 The court can accomplish this feat by first determining the net monthly income of the supporting
spouse, and then exercising its discretion in determining the reasonable expenses of the supporting spouse
based only on that income.3434

Family Code Section 4323(a) provides for a presumption of decreased need if the supported spouse is
cohabiting,3535 and Family Code Section 4337 provides for termination of spousal support on remarriage. 3636

2828 See In re Marriage of Kochan (2011) 193 Cal. App. 4th 420, 422, 428–429, 122 Cal. Rptr. 3d 61 (court erred in ordering spousal support
amount that was based on obligor’s potential income available from combination of state employee retirement benefits and income from
university faculty early retirement program, rather than on obligor’s actual income from continued employment with state university).

2929 In re Marriage of Berman (2017) 15 Cal. App. 5th 914, 223 Cal. Rptr. 3d 604 (when husband transferred ownership of his business for
no consideration to his current wife when he reached retirement age, court properly ruled that income from business could be imputed to
husband for purposes of spousal support for his former wife).

3030 Fam. Code § 4323(b); In re Marriage of Romero (2002) 99 Cal. App. 4th 1436, 1442–1443, 122 Cal. Rptr. 2d 220 (Fam. Code § 4323(b)
precludes both direct and indirect consideration of new mate income); In re Marriage of Serna (2000) 85 Cal. App. 4th 482, 487, 102 Cal.
Rptr. 2d 188; In re Marriage of Reynolds (1998) 63 Cal. App. 4th 1373, 1378, 74 Cal. Rptr. 2d 636.

3131 See In re Marriage of Ramer (1986) 187 Cal. App. 3d 263, 272–273, 231 Cal. Rptr. 647 (community earnings of supporting spouse’s
new spouse could be considered as available to defray expenses of new community, and thus increase amount available from supporting
spouse for support).

3232 See Stats. 1993, ch. 935.

3333 In re Marriage of Romero (2002) 99 Cal. App. 4th 1436, 1445, 122 Cal. Rptr. 2d 220.

3434 In re Marriage of Romero (2002) 99 Cal. App. 4th 1436, 1445–1446, 122 Cal. Rptr. 2d 220.

3535 In re Marriage of Geraci (2006) 144 Cal. App. 4th 1278, 1298–1299, 51 Cal. Rptr. 3d 234; In re Marriage of Bower (2002) 96 Cal. App.
4th 893, 901, 117 Cal. Rptr. 520; cf. In re Marriage of Samson (2011) 197 Cal. App. 4th 23, 127 Cal. Rptr. 3d 857 (suggesting that
presumption may be applicable to temporary support, as well).

3636 See ch. 52 for further discussion of these statutes.

 Page 89 of 171
§ 51.33 Supporting Spouse’s Ability to Pay

There may be constitutional implications in treating the obligor’s ability to pay and the obligee’s needs
differently with regard to subsequent spouse or cohabitant income. 3737 Subsequent spouse or partner income as
it relates to child support is discussed further in Chapter 41.

[4] Assets and Obligations

Ability to pay encompasses more than the supporting spouse’s income; investments and other assets may be
considered.3838
In determining a payor’s assets, the court may look past the apparent form of ownership of the assets to
determine the extent of the payor’s true interest in them and the availability of the assets in assessing ability to
pay. Property held in trust or by a corporation may be considered as available to the payor if the evidence
shows that the payor has the effective control over the property.3939

■ PRACTICE TIP:

As equity compensation becomes ever more common, counsel and courts must reckon with issues of
when and how to consider income available from restricted stock units, stock options and other forms
of equity compensation. Restricted stock units are typically granted such that the stock becomes
unrestricted after a vesting period, when it is taxed as ordinary income and available for sale. The
question in such instance becomes whether the full value of that unrestricted stock should at that time
(when the stock is fully marketable) be considered as income available for spousal support, and the
individual facts of different cases may indicate different answers. For stock options, which vest after
periods of time, the court and counsel must consider the cost of purchasing the shares, the tax
consequences at the time of exercise and sale and other factors relevant to determination of the actual
amount of income available, if any, to each spouse. In some cases, the costs of exercising the stock
option is greater than the value of the options. To the extent that each spouse was awarded options in
the division of the community, each spouse is credited with whatever income is realized from any sale
of the options. Commentary by Diana Richmond and Kathryn Kirkland

A supporting spouse’s obligations generally must be considered in determining ability to pay. However,
amounts to be paid to the supported spouse to effect an equal division of community property is not to be
considered. To allow the obligor spouse to pay less support in order to accumulate funds to pay an obligation
arising from the property division contravenes the statutory mandate that the community property be divided
equally.4040
California Family Law Prac & Proc 2d ed.
Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

3737 See In re Marriage of Dade (1991) 230 Cal. App. 3d 621, 630–633, 281 Cal. Rptr. 609 (finding prior child support statute constitutional
by construing it as permitting consideration of subsequent spouse or partner income with regard to either parent); see also ch. 52.

3838 See In re Marriage of Cheriton (2001) 92 Cal. App. 4th 269, 305, 111 Cal. Rptr. 2d 755; In re Marriage of Dick (1993) 15 Cal. App. 4th
144, 159, 18 Cal. Rptr. 2d 743.

3939 In re Marriage of DeGuigne (2002) 97 Cal. App. 4th 1353; 119 Cal. Rptr. 2d 430; In re Marriage of Dick (1993) 15 Cal. App. 4th 144,
159–165, 18 Cal. Rptr. 2d 743.

4040 In re Marriage of Rosan (1972) 24 Cal. App. 3d 885, 895 n.5, 101 Cal. Rptr. 295.
 2 California Family Law Prac & Proc 2d ed. § 51.34

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART C. POST-
JUDGMENT SUPPORT > Subpart 1. Factors Affecting Post-judgment Support Orders

§ 51.34 Need and Earning Capacity of Supported Spouse

Spousal support must be based, in part, on the reasonable needs of the supported spouse. 1 The court must also take
into consideration the supported spouse’s earning capacity and the effect of possible employment on the interests of
any dependent children in her or his custody.2 Need and earning capacity are to be determined with reference to (but
not absolutely limited by) the standard of living established during the marriage 3 (see § 51.33). However, a spouse
who is already self-supporting and has no need for support should not be awarded support based solely on the
standard of living established during the marriage.4

In determining the supported spouse’s earning capacity, the court must take into account (1) the marketable skills of
the supported spouse, the job market for those skills, the time and expenses required for the supported spouse to
acquire the appropriate education or training to develop those skills, and the possible need for retraining or
education to acquire other more marketable skills or employment; 5 and (2) the extent to which the supported
spouse’s present or future earning capacity is impaired by periods of unemployment that were incurred during the
marriage to permit the supported spouse to devote time to domestic duties. 6

■ PRACTICE TIP:

There may be a difference between the application of earning capacity with regard to a supporting spouse
and with regard to a supported spouse. The supported spouse can, in practice, be charged with an earning
capacity absent a finding of bad faith, if a report following a vocational exam reveals that they could be

11 Fam. Code § 4320(d).

22 Fam. Code § 4320(a), (g); see In re Marriage of Mosley (2008) 165 Cal. App. 4th 1375, 1390, 82 Cal. Rptr. 3d 497 ; In re Marriage of
Ackerman (2006) 146 Cal. App. 4th 191, 210–212, 52 Cal. Rptr. 3d 744; In re Marriage of Prietsch & Calhoun (1987) 190 Cal. App. 3d 645,
657–658, 235 Cal. Rptr. 587.

33 Fam. Code § 4320(a)(1), (d); see In re Marriage of McTiernan & Dubrow (2005) 133 Cal. App. 4th 1090, 1107–1108, 35 Cal. Rptr. 3d
287 (failure to consider ability and need factors resulted in erroneous two-year limit on support); In re Marriage of Cheriton (2001) 92 Cal.
App. 4th 269, 307–308, 111 Cal. Rptr. 2d 755; In re Marriage of Ostler & Smith (1990) 223 Cal. App. 3d 33, 48, 272 Cal. Rptr. 560 . But see
In re Marriage of Ficke (2013) 217 Cal. App. 4th 10, 24 (court erred in awarding spousal support to husband based on standard of living
during marriage and wife’s earning capacity, when husband was already self-supporting, had substantial assets, and had a good career).

44 In re Marriage of Ficke (2013) 217 Cal. App. 4th 10, 24.

55 Fam. Code § 4320(a)(1).

66 Fam. Code § 4320(a)(2).

 Page 91 of 171
§ 51.34 Need and Earning Capacity of Supported Spouse

employed at a specific income level. It is unusual to have a vocational evaluation done for a supporting
party, mostly because there is seldom a question about the supporting spouse’s earnings being consistent
with their capacity. However, there is nothing to suggest that a supporting spouse who is effectively under-
employed should not be subject to a vocational evaluation. There is one major difference, however, between
the supporting spouse and the supported spouse. The supported spouse is subject to the public policy that
they must become self-supporting in a reasonable period of time. As years have passed, vocational
examinations seem to have less and less value for many courts. They are truly looking at what job a person
has applied for as opposed to just hopeful options. A practical approach is to have your client apply for
every position in the examiner’s report. Hearsay contained in those reports is also no longer accepted by
courts. A good examine may actually give your supported spouse client a bit of career counseling or refer
them to an appropriate counselor. Commentary by Diana Richmond, Kathryn Kirkland, and Sandra L.
Mayberry

Spousal support should generally not be awarded to a spouse who is already self-supporting, The supported spouse
is to be encouraged to seek gainful employment rather than to rely on spousal support, 7 and it is the expressed
policy of the Legislature to encourage supported spouses to become self-supporting within a reasonable period of
time. This policy is reflected in the circumstances a court may consider in ordering spousal support, and in the
admonition a court may give in ordering support or in reserving jurisdiction over support. 8 Indeed, if there is
evidence that the supported spouse has unreasonably delayed or refused to seek employment consistent with that
spouse’s ability, that factor may be taken into account in fixing the amount of spousal support in the first instance, 9
or in modifying or terminating support. 1010 However, if there is no evidence of any unreasonable delay or willful
refusal to seek employment consistent with a spouse’s health and parental responsibilities, and if the other spouse
has the ability to pay the needed support, it is inappropriate to make a spousal support order in an amount
substantially less than that needed as an incentive for the supported spouse to seek employment. 1111

There is a rebuttable presumption affecting the burden of proof that a former spouse who is cohabiting with a
nonmarital partner has a decreased need for support. 1212 Remarriage terminates the right to spousal support unless
the parties have agreed to the contrary.1313 For further discussion, see Chapter 52.

77 In re Marriage of Mason (1979) 93 Cal. App. 3d 215, 221, 155 Cal. Rptr. 350 (affirming denial of spousal support to wife whose earning
capacity exceeded her disabled husband’s, despite husband’s greater assets).

88 Fam. Code §§ 4320(l), 4330 (b); see § 51.31.

99 In re Marriage of Rosan (1972) 24 Cal. App. 3d 885, 896, 101 Cal. Rptr. 295; see In re Marriage of Prietsch & Calhoun (1987) 190 Cal.
App. 3d 645, 657, 235 Cal. Rptr. 587.

1010 Fam. Code § 4330(b); see In re Marriage of Schmir (2005) 134 Cal. App. 4th 43, 54, 58, 35 Cal. Rptr. 3d 716 (support of spouse who
has become employable may be terminated following reasonable advance notice and opportunity to find gainful employment). But see Liu v.
Mund (7th Cir. 2012) 686 F.3d 418 (alien spouse’s failure to seek employment does not excuse sponsoring spouse’s obligation to provide
support pursuant to federal form I-864, Affidavit of Support).

1111 In re Marriage of Rosan (1972) 24 Cal. App. 3d 885, 896–897, 101 Cal. Rptr. 295.

1212 Fam. Code § 4323(a); see In re Marriage of Bower (2002) 96 Cal. App. 4th 893, 901; In re Marriage of Regnery (1989) 214 Cal. App.
3d 1367, 1378, 263 Cal. Rptr. 243; cf. In re Marriage of Samson (2011) 197 Cal. App. 4th 23, 127 Cal. Rptr. 3d 857 (leaving open possibility
that presumption could be applicable to temporary support).

1313 Fam. Code § 4337; In re Marriage of Thornton (2002) 95 Cal. App. 4th 251, 254, 115 Cal. Rptr. 2d 380.
 Page 92 of 171
§ 51.34 Need and Earning Capacity of Supported Spouse

■ PRACTICE TIP:

“Cohabitation” means more than just living in the same residence and engaging in intimate relations.
Proof of engaging in intimate relations is not a requirement to prove cohabitation, although that tends to be
what people think of when the term “cohabitation” is used. “Cohabitation” for purposes of the rebuttable
presumption requires that the supported spouse and the spouse’s cohabitor have combined their financial
resources in a way that resembles a couple or a family. There is no reason why the principle of
“cohabitation” cannot be applied to another family member, such as a parent, sibling or adult child, who
resides with the supported spouse and whose finances are commingled with those of the supported spouse.
Commentary by Kathryn Kirkland

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document
 2 California Family Law Prac & Proc 2d ed. § 51.35

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART C. POST-
JUDGMENT SUPPORT > Subpart 1. Factors Affecting Post-judgment Support Orders

§ 51.35 Contributions to Education and Career

In ordering spousal support, the court must consider the extent to which the supported spouse contributed to the
attainment of an education, training, career, or license by the other spouse. 1 This language is interpreted broadly to
require consideration of all of an employed spouse’s efforts to assist a student spouse in acquiring an education and
enhanced earning capacity.2 Contributions are not limited to direct educational expenses, but include the payment
by an employed spouse of the ordinary living expenses of the marriage during the period when the other spouse is
pursuing studies.3 These contributions may justify a spousal support order in excess of that needed to sustain the
standard of living attained during marriage.4

In addition to spousal support, a court may order one spouse to be reimbursed for community contributions to the
education or training of the other spouse.5

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

11 Fam. Code § 4320(b).

22 In re Marriage of Watt (1989) 214 Cal. App. 3d 340, 350, 262 Cal. Rptr. 783.

33 In re Marriage of Watt (1989) 214 Cal. App. 3d 340, 350–351, 262 Cal. Rptr. 783.

44 In re Marriage of Ostler & Smith (1990) 223 Cal. App. 3d 33, 46–49, 272 Cal. Rptr. 560.

55 See Fam. Code § 2641.

 2 California Family Law Prac & Proc 2d ed. § 51.36

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART C. POST-
JUDGMENT SUPPORT > Subpart 1. Factors Affecting Post-judgment Support Orders

§ 51.36 Supported Spouse’s Assets and Obligations; Separate Estate

In ordering spousal support, the court must consider the obligations and assets of each party, including the separate
property of each.1 Family Code Sections 4321 and 4322 provide additional directions to the court if a party seeking
support has separate property. The court may deny support to a party out of the separate property of the other in
either of the following circumstances:2
1. If the party seeking support has separate property, or is earning their own livelihood, or if there is
community or quasi-community property sufficient to give the party proper support; or
2. If the custody of the children has been granted to the party from whom support is sought and that party is
supporting them.

The court must deny support if there are no children and a party has or acquires a separate estate, including income
from employment, sufficient for the party’s proper support.3

Family Code Sections 4321 and 4322 are derived from former Civil Code Section 142, which predated both the
former Family Law Act and the Family Code. 4 As such, the phrase “sufficient for the party’s proper support”
should be viewed in light of the standards set forth in Family Code Section 4320.5 Spousal support should not be
ordered for a party who is currently capable of self-support through employment or other separate property. 6

Community property that is distributed to a spouse in the dissolution becomes that spouse’s separate property, and
the manner in which the property is used may be considered in determining whether that spouse should also receive
spousal support.7 Income from income-producing assets received in the division of community property must be
taken into account.8 Support has been limited based on the supported spouse’s improvident management of assets

11 Fam. Code § 4320(e).

22 Fam. Code § 4321.

33 Fam. Code § 4322; In re Marriage of Terry (2000) 80 Cal. App. 4th 921, 928, 95 Cal. Rptr. 2d 760.

44 See Stats. 1969, ch. 1608.

55 See In re Marriage of McNaughton (1983) 145 Cal. App. 3d 845, 850–851, 194 Cal. Rptr. 76; see also In re Marriage of Terry (2000) 80
Cal. App. 4th 921, 928, 95 Cal. Rptr. 2d 760 (in modification proceeding, court considers Fam. Code § 4320 factors, but under Fam. Code §
4322, denial of continued support is mandatory if sufficiency standard met irrespective of circumstances court would otherwise need to
consider under § 4320).

66 See Fam. Code 4322; In re Marriage of Terry (2000) 80 Cal. App. 4th 921, 928, 95 Cal. Rptr. 2d 760. In re Marriage of Cosgrove (1972)
27 Cal. App. 3d 424, 428, 433–434, 103 Cal. Rptr. 733; see In re Marriage of Rives (1982) 130 Cal. App. 3d 138, 164, 181 Cal. Rptr. 572.
 Page 95 of 171
§ 51.36 Supported Spouse’s Assets and Obligations; Separate Estate

that should have been sufficient to provide self-sufficiency at the marital standard of living. 9 One court, in dicta, has
expressed doubt that a spouse may be ordered to invest their share of community assets in income-producing
property so as to obviate the need for spousal support. 1010 Under Family Code Section 4322, it is not up to the trial
court to direct a supported party to make any particular investment, but to ascertain whether that party’s estate could
reasonably generate sufficient income for proper support.1111

■ PRACTICE TIP:

This issue is more relevant to modification requests, but may occur at a hearing for permanent spousal
support if the dissolution process has gone on for some significant period of time. In a modification request,
if the evidence shows that a supported spouse has squandered their assets, courts are very reluctant to make
the supporting spouse the guarantor of the supported party’s financial security. Commentary by Kathryn
Kirkland

■ PRACTICE TIP:

The income-generating capacity of assets granted to either spouse at the time of the dissolution may be
considered at that time if there is already, for example, an investment account or rent-producing property
that is granted to the supported spouse unless that spouse has immediate plans to change that income-
producing property to something else. The classic example of not considering income from such assets is to
the extent they will be spent on a replacement residence for the supported spouse, and even then, the
question becomes the reasonableness of the amount diverted to residence from income producing assets.
Commentary by Diana Richmond

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

88 See In re Marriage of Winick (1979) 89 Cal. App. 3d 525, 528–529, 152 Cal. Rptr. 635; see also In re Marriage of Martin (1991) 229 Cal.
App. 3d 1196, 1201, 280 Cal. Rptr. 565.

99 In re Marriage of McElwee (1988) 197 Cal. App. 3d 902, 909–910, 243 Cal. Rptr. 179.

1010 See In re Marriage of Kennedy (1987) 193 Cal. App. 3d 1633, 1640 n.3, 239 Cal. Rptr. 151; see also In re Marriage of Martin (1991)
229 Cal. App. 3d 1196, 1201, 280 Cal. Rptr. 565; but see In re Marriage of McNaughton (1983) 145 Cal. App. 3d 845, 852–853, 194 Cal.
Rptr. 176 (dicta that wife’s diligence in finding and making permanent investments of estate of over $3 million distributed to her will be
relevant as to future duration and amount of support).

1111 In re Marriage of Terry (2000) 80 Cal. App. 4th 921, 932, 95 Cal. Rptr. 2d 760.
 2 California Family Law Prac & Proc 2d ed. § 51.37

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART C. POST-
JUDGMENT SUPPORT > Subpart 1. Factors Affecting Post-judgment Support Orders

§ 51.37 Duration of Marriage

The duration of the marriage is a factor in setting spousal support. 1 Duration of marriage is generally considered a
factor that is more relevant to the duration of a spousal support obligation than to the amount of support to be
ordered.2 Thus, the duration of the marriage is of primary concern in determining whether jurisdiction should be
retained indefinitely over spousal support, or whether spousal support should be ordered for a limited term, after
which jurisdiction is terminated.3 This issue is discussed in § 51.53.

■ PRACTICE TIP:

Duration of marriage is also highly relevant to the question of the extent to which marital standard of
living should dictate the existence or level of spousal support. It is axiomatic that the longer the marriage,
the more the supported spouse can expect to receive support gauged by the marital standard of living. The
more difficult scenario is one in which the marriage is between 10 and 15 or 18 years in duration. The
parties are in their late 30s or early 40s, prime earning years, and one spouse has been the “stay at home”
spouse with primary responsibility for rearing the children. In that case, the former “stay at home” spouse
needs to obtain employment. Many such spouses have college degrees or special training, but their skills are
out of date. A practical solution to this problem is a plan to fully support the former “stay at home” spouse
while that spouse obtains necessary skills to be able to obtain employment in the current market. A
reasonable period of time is allotted for the attainment of these skills and a significant reduction in support is
ordered at the end of the allotted time. The order can be modified in the event unforeseen issues arise that
require a change in the order. Commentary by Diana Richmond and Kathryn Kirkland

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

11 Fam. Code § 4320(f).

22 See In re Marriage of Hebbring (1989) 207 Cal. App. 3d 1260, 1266, 255 Cal. Rptr. 488.

33 See In re Marriage of Prietsch & Calhoun (1987) 190 Cal. App. 3d 645, 659–667, 235 Cal. Rptr. 587.
 2 California Family Law Prac & Proc 2d ed. § 51.38

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART C. POST-
JUDGMENT SUPPORT > Subpart 1. Factors Affecting Post-judgment Support Orders

§ 51.38 Age and Health of Parties

In determining a spousal support order, the court must consider the age and health of the parties. 1 Obviously, the
younger and healthier a person is, the less likely it is that the person will need spousal support. 2 Nevertheless, the
total disability of one spouse, alone, does not require that spousal support be ordered in perpetuity, if other statutory
factors indicate that support is no longer appropriate. At some point, it may be appropriate to shift the burden of
supporting a totally disabled person from a former spouse to society. In other words, marriage alone does not make
one spouse a guarantor that the other will never become a public charge. 3 Similarly, a disability does not alone
justify an order of spousal support to the disabled spouse if the disability does not have a major effect on earning
capacity, and the spouse would otherwise be expected to be employed rather than receive spousal support. 4

While advanced age and poor health also may affect a supporting spouse’s ability to pay, these factors alone do not
justify a termination of a support obligation if the supporting spouse has sufficient assets from which support may
be paid.5

In considering the age of the parties, the court must consider whether either spouse has reached a normal retirement
age.6 A support obligor may not be compelled to work after the usual retirement age in order to continue paying the
same level of spousal support.7 Under those circumstances, the trial court may determine that there has been a
material change in circumstances to justify a modification of support. Just as a married couple may expect a

11 Fam. Code § 4320(h).

22 See In re Marriage of Mason (1979) 93 Cal. App. 3d 215, 221, 155 Cal. Rptr. 350.

33 See In re Marriage of Wilson (1988) 201 Cal. App. 3d 913, 916–920, 247 Cal. Rptr. 522 (involving short-term marriage of middle-aged
persons with adult children, during which wife became totally disabled).

44 See In re Marriage of Harrison (1986) 179 Cal. App. 3d 1216, 1230, 225 Cal. Rptr. 234 (involving 33-year-old epileptic wife who had
been employed before 65-month marriage).

55 Compare In re Marriage of Crobarger (1986) 178 Cal. App. 3d 56, 60, 223 Cal. Rptr. 480 (retired husband with retirement income
required to continue to support elderly wife with less employment income) with In re Marriage of Mason (1979) 93 Cal. App. 3d 215, 221,
155 Cal. Rptr. 350 (totally disabled husband with income from property not required to support younger wife with adequate earning
capacity).

66 In re Marriage of McLain (2017) 7 Cal. App. 5th 262.

77 In re Marriage of Reynolds (1998) 63 Cal. App. 4th 1373, 1378, 74 Cal. Rptr. 2d 636.
 Page 98 of 171
§ 51.38 Age and Health of Parties

reduction in income due to retirement, a divorced spouse cannot expect to receive the same high level of support
after the supporting spouse retires.8

Likewise, a court may decline to impute income to a supported spouse who has reached age 65 and has already
retired, even if though the supported spouse might have the ability to become self-supporting. 9 Under these
circumstances, the court may determine that the age factor is entitled to more weight than the “ability to become
self-supporting” factor.1010

■ PRACTICE TIP:

The issue of permanent spousal support for older couples is one that will continue to grow in importance.
People are living longer and marriages of long duration are more frequently ending in dissolution. The
previous “retirement age” of 65 was chosen because it was the age at which full retirement benefits under
Social Security became available. Today full retirement benefits age is 67. Counsel for both parties should
consider the likely impact of retirement on the amount of permanent spousal support, including a reasonable
expectation of what income from retirement or tax-deferred assets will be available. The Practice Tip from
Diana Richmond in § 51.33[1] referring to In re Marriage of Reynolds is relevant here. Commentary by
Kathryn Kirkland

■ PRACTICE TIP:

While “retirement age” drifts upward with longer life expectancy, counsel should take note that earlier
retirement ages may dictate a different outcome for such occupations as police officer, firefighter, miner or
others where physical strength or stamina or mandatory retirement rules apply. Commentary by Diana
Richmond

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

88 In re Marriage of Reynolds (1998) 63 Cal. App. 4th 1373, 1378, 74 Cal. Rptr. 2d 636.

99 In re Marriage of McLain (2017) 7 Cal. App. 5th 262, 271.

1010 In re Marriage of McLain (2017) 7 Cal. App. 5th 262, 271–72 (court did not abuse its discretion in holding 66-year-old wife had right to
remain retired).
 2 California Family Law Prac & Proc 2d ed. § 51.39

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART C. POST-
JUDGMENT SUPPORT > Subpart 1. Factors Affecting Post-judgment Support Orders

§ 51.39 Support and Education of Adult Children

A series of cases have held that voluntary payments made by a parent for the support or education of an adult child
not otherwise entitled to support may be taken into account in determining spousal support. Payments made by the
supporting spouse may be considered as reducing the supporting spouse’s ability to pay; 1 payments made by the
supported spouse may be considered as increasing the supported spouse’s need.2

However, at least one reported appellate decision, In re Marriage of Serna,3 refused to follow In re Marriage of
Siegel4 and In re Marriage of Paul,5 cases cited for the proposition that spousal support may be increased to account
for support of adult children. Serna held that Siegel and Paul were wrongly decided, because “they allow for the
naked circumvention of a decision that has already been made by the Legislature—namely, that child support ends
at 19 at the latest, absent incapacity to earn a living.” Neither case directly confronted the idea that it was allowing
something to be done indirectly that could not be done directly. That is, because a parent cannot be ordered to make
direct support payments for an adult child, absent incapacity of the adult child to earn a living, 6 he cannot be
ordered to make “indirect” adult child support payments under the guise of spousal support. 7

There is also dicta in Serna,8 criticizing the position that supporting spouses who voluntarily support adult children
could receive a decrease in spousal support. It was reasoned that case law has established that supporting spouses
“cannot deliberately shirk support obligations by refusing to work.” 9 Similarly, if a supporting spouse were to
voluntarily help an adult child through a very expensive private college, which left very little left to pay spousal

11 See, e.g., In re Marriage of Epstein (1979) 24 Cal. 3d 76, 90, 154 Cal. Rptr. 413, 592 P.2d 1165 ; see also In re Marriage of Paul (1985)
173 Cal. App. 3d 913, 919, 219 Cal. Rptr. 318; In re Marriage of Kelley (1976) 64 Cal. App. 3d 82, 95, 134 Cal. Rptr. 259.

22 In re Marriage of Paul (1985) 173 Cal. App. 3d 913, 918–921, 219 Cal. Rptr. 318; In re Marriage of Siegel (1972) 26 Cal. App. 3d 88, 93,
102 Cal. Rptr. 613.

33 In re Marriage of Serna (2000) 85 Cal. App. 4th 482, 486–491, 102 Cal. Rptr. 2d 188.

44 In re Marriage of Siegel (1972) 26 Cal. App. 3d 88.

55 In re Marriage of Paul (1985) 173 Cal. App. 3d 913, 918–921.

66 Fam. Code §§ 3901(a), 3910(a); In re Marriage of Chandler (1997) 60 Cal. App. 4th 124, 130.

77 In re Marriage of Serna (2000) 85 Cal. App. 4th 482, 491, 102 Cal. Rptr. 2d 188 citing In re Marriage of McElwee (1988) 197 Cal. App.
3d 902, 910–911, 243 Cal. Rptr. 179; see In re Marriage of Lynn (2002) 101 Cal. App. 4th 120, 133, 123 Cal. Rptr. 2d 611 (court may not
award support of adult children under guise of spousal support).

88 In re Marriage of Serna (2000) 85 Cal. App. 4th 482, 492–493.

 Page 100 of 171
§ 51.39 Support and Education of Adult Children

support, the supported spouse would be subsidizing the supporting spouse’s child support to the degree that the
expense was factored into the support decision.

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document
 2 California Family Law Prac & Proc 2d ed. § 51.40

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART C. POST-
JUDGMENT SUPPORT > Subpart 1. Factors Affecting Post-judgment Support Orders

§ 51.40 Effect of Agreement Between Parties

The factors set forth in Family Code Section 4320 (see §§ 51.31–51.39) are those to be considered by the court in
setting spousal support if there has been no agreement of the parties. 1 Under current California law, an agreement of
the parties regarding spousal support is subject to judicial review to determine that it is fair and not tainted by fraud,
compulsion, collusion, or undue influence. But if there is no reason for questioning the validity or fairness of the
agreement, the court may not withhold its approval.2

One or both parties may waive the right to spousal support in a separation or marital termination agreement. 3
However, such a waiver is subject to particular scrutiny because waiver of a right favored in law is not lightly
found.4 Language constituting a waiver must clearly and explicitly manifest that intention. 5 Waiver must be a
voluntary act, knowingly done with sufficient awareness of the relevant circumstances and likely consequences.
Contract formation defenses such as fraud, compulsion, or breach of fiduciary duty, may render the agreement
invalid.6 Finally, marital settlement agreements may be set aside if the court finds them inequitable even though not
induced through fraud or compulsion.7

11 In re Marriage of Carletti (1975) 53 Cal. App. 3d 989, 995, 126 Cal. Rptr. 1 ; In re Marriage of Hawkins (1975) 48 Cal. App. 3d 208, 212,
121 Cal. Rptr. 681.

22 Garrett v. Garrett (1968) 258 Cal. App. 2d 407, 416–417. Under prior law, the enforceability of a spousal support agreement depended on
whether the agreement was deemed to be “integrated” with the disposition of the community property. The concept of integrated and
nonintegrated agreements has now disappeared from the family law landscape (see Fam. Code § 3590; In re Marriage of Glasser (1986) 181
Cal. App. 3d 149, 152, 226 Cal. Rptr. 229; Tilghman v. Superior Court (1974) 40 Cal. App. 3d 599, 611–612, 115 Cal. Rptr. 195). For further
discussion, see § 51.60.

33 See Estate of Kalal (1981) 121 Cal. App. 3d 841, 851, 175 Cal. Rptr. 582; Cochrum v. Cochrum (1958) 162 Cal. App. 2d 825, 831–832,
328 P.2d 1000; see also In re Marriage of Paboojian (1987) 189 Cal. App. 3d 1434, 1437–1439, 235 Cal. Rptr. 65 (postjudgment oral waiver
of support).

44 See In re Marriage of Moore (1980) 113 Cal. App. 3d 22, 27, 169 Cal. Rptr. 619.

55 In re Marriage of Moore (1980) 113 Cal. App. 3d 22, 28, 169 Cal. Rptr. 619.

66 See In re Marriage of Moore (1980) 113 Cal. App. 3d 22, 27, 169 Cal. Rptr. 619.

77 In re Marriage of Moore (1980) 113 Cal. App. 3d 22, 32, 169 Cal. Rptr. 619.
 Page 102 of 171
§ 51.40 Effect of Agreement Between Parties

The parties may also agree that spousal support may not be modified or terminated by court order, 8 and the court
must abide by that agreement.9 For further discussion, see § 51.60.

■ PRACTICE TIP:

In the drafting of an agreement regarding spousal support, it is very helpful for the parties to agree upon
and set out the factors they were considering under Family Code section 4320. The more information they
provide in their agreement, the less difficult it will be for a future court looking at the agreement to
determine, for example, whether a change in financial circumstances has occurred. Further, the parties
themselves may lose records or forget some of the circumstances which existed at the time they reached an
agreement. Asking a court to “start from scratch” to determine the 4320 factors for a case 10, 15, 20 years
after an agreement is difficult. Counsel should submit tax returns to the Court at the hearing for evidentiary
purposes, but should request the return of the tax returns at the end of the hearing, to protect privacy.
Commentary by Sandra L. Mayberry and Kathryn Kirkland

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

88 See Fam. Code §§ 3591(c), 3651(d).

99 In re Marriage of Carletti (1975) 53 Cal. App. 3d 989, 995, 126 Cal. Rptr. 1.
 2 California Family Law Prac & Proc 2d ed. § 51.41

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART C. POST-
JUDGMENT SUPPORT > Subpart 1. Factors Affecting Post-judgment Support Orders

§ 51.41 Examination by Vocational Training Counselor

If spousal support is at issue, the court may order either party to submit to an examination by a vocational training
counselor.1 The order must be made on motion, for good cause. 2 For good cause to exist, there must be an issue of
support pending before the family court and some showing that one of the spouses is either unemployed or
underemployed.3

A party who refuses to comply with an order to submit to a vocational examination is subject to the same
consequences provided for failure to comply with an examination by a physician or psychologist ordered under the
Code of Civil Procedure (Code Civ. Proc. § 2032.010 et seq.).4

The vocational examination must include an assessment of the party’s ability to obtain employment, based on the
party’s age, health, education, marketable skills, employment history, and the current availability of employment
opportunities. The focus of the examination must be on an assessment of the party’s ability to obtain employment
that would allow the party to maintain the marital standard of living. 5 The court may order the supporting spouse to
pay, in addition to spousal support, the necessary expenses and costs of the counseling, retraining, or education. 6
For forms for use in moving for an examination by a vocational training counselor, see § 51.101.

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

11 Fam. Code § 4331(a); see Fam. Code § 4331(e) (required qualifications of vocational training counselor); see also Fam. Code § 3558
(power of court to require either parent to attend job training, job placement, and vocational rehabilitation and work programs in any
proceeding involving family or child support).

22 Fam. Code § 4331(b).

33 See In re Marriage of Stupp & Schilders (2017) 11 Cal. App. 5th 907 (good cause did not exist when support orders were being appealed
and there was no pending motion for support before family court).

44 Fam. Code § 4331(c).

55 Fam. Code § 4331(a).

66 Fam. Code § 4331(f).

 2 California Family Law Prac & Proc 2d ed. § 51.42

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART C. POST-
JUDGMENT SUPPORT > Subpart 1. Factors Affecting Post-judgment Support Orders

§ 51.42 Discovery of Tax Returns

In a proceeding involving spousal support, no party to the proceeding may refuse to submit copies of their federal
and state income tax returns to the court, whether individual or joint. 1 The tax returns may be examined by the other
party and are discoverable by the other party. A party also may be examined by the other party as to the content of a
tax return.2

If the court finds that it is relevant to the case to retain the tax return, it must be sealed and maintained as a
confidential record of the court. If the court finds that the tax return is not relevant to disposition of the case, all
copies of the tax return must be returned to the party who submitted it. 3

■ PRACTICE TIP:

It is not good practice to attach copies or portions of copies of tax returns as exhibits to pleadings. If
information on the tax return is to be part of an evidentiary presentation to the court, the tax return should be
submitted (in a lodgment if allowed by your court) at the hearing and then returned to the party at the close
of the hearing. Counsel should be prepared to direct the court’s attention to the relevant portion of the tax
return and request that the court admit that information as evidence. The use of Notice of Lodgments is a
helpful mechanism. Although there is now a statutory provision for sealing financial information in the court
file, it is better not to have the information in the court file in the first place. In most courts sealing any
portion of a file is difficult and often not granted. If W-2s or tax returns prove necessary to become a part of
the court’s file, make certain social security numbers are redacted. Commentary by Kathryn Kirkland and
Sandra L. Mayberry

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

11 Fam. Code § 3552(a).

22 Fam. Code § 3552(b).

33 Fam. Code § 3552(c).

 2 California Family Law Prac & Proc 2d ed. § 51.43

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART C. POST-
JUDGMENT SUPPORT > Subpart 1. Factors Affecting Post-judgment Support Orders

§ 51.43 Support Order in Default Judgment if Support Is Not Requested

The relief that may be granted on default in a family law matter cannot exceed that requested in the petition. 1 This
rule is imposed both by due process requirements and the Code of Civil Procedure. 2 Therefore, if no spousal
support is requested in the petition and the respondent defaults, no spousal support may be ordered in the
judgment.3

The above rule may prohibit a reservation of jurisdiction (see Subpt. 2, below) to order spousal support in the future
to be paid by a defaulting respondent if it is not requested in the petition. 4 However, it has been held that
jurisdiction may be reserved to order spousal support to a defaulting spouse even though the petition does not
request spousal support for either party. 5 If a default is taken against the supported spouse, and the supporting
spouse is both present at the default hearing and represented by counsel, reservation of the spousal support issue
does not violate Code of Civil Procedure Section 580 by granting relief in excess of the relief requested. 6 The
supporting spouse’s active participation at the default hearing eliminates the need to protect him or her against
open-ended liability or undue advantage, so that the reason behind Code of Civil Procedure Section 580 ceases to
exist.7 The same reasoning supports reservation of jurisdiction to order support to a party who did not request it in
the pleadings if both parties are before the court.8

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

11 In re Marriage of Lippel (1990) 51 Cal. 3d 1160, 1166–1171, 276 Cal. Rptr. 290, 801 P.2d 1041.

22 In re Marriage of Lippel (1990) 51 Cal. 3d 1160, 1166–1167, 276 Cal. Rptr. 290, 801 P.2d 1041; see Code Civ. Proc. § 580; Cal. Rules of
Ct., Rules 5.21 (eff. through Dec. 31, 2012), 5.2(d) (eff. Jan. 1, 2013) (general applicability of Code of Civil Procedure to family law).

33 See In re Marriage of Lippel (1990) 51 Cal. 3d 1160, 1167, 1170–1171, 276 Cal. Rptr. 290, 801 P.2d 1041 (involving child support).

44 See In re Marriage of Liss (1992) 10 Cal. App. 4th 1426, 1429–1430, 13 Cal. Rptr. 2d 397.

55 In re Marriage of Wells (1988) 206 Cal. App. 3d 1434, 1437–1440, 254 Cal. Rptr. 185 (default dissolution of 14-year marriage with
default taken against supported AFDC spouse).

66 In re Marriage of Wells (1988) 206 Cal. App. 3d 1434, 1439, 254 Cal. Rptr. 185; cf. Cushman v. Cushman (1960) 178 Cal. App. 2d 492,
496, 3 Cal. Rptr. 24 (supporting spouse who appeared at default trial needed no Code Civ. Proc. § 580 protection against undue advantage).

77 In re Marriage of Wells (1988) 206 Cal. App. 3d 1434, 1437–1439, 254 Cal. Rptr. 185.

88 In re Marriage of Liss (1992) 10 Cal. App. 4th 1426, 1429, 13 Cal. Rptr. 2d 397.
 Page 106 of 171
§ 51.43 Support Order in Default Judgment if Support Is Not Requested
End of Document
 2 California Family Law Prac & Proc 2d ed. § 51.44

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART C. POST-
JUDGMENT SUPPORT > Subpart 1. Factors Affecting Post-judgment Support Orders

§ 51.44 Domestic Violence and Violent Sexual Felonies

Documented evidence of any history of domestic violence between the parties or by one party against either party’s
child is among the circumstances that must be considered in ordering spousal support. 1 The court must consider a
plea of nolo contendere, issuance of a protective order after a hearing, and any finding during a family law
proceeding that the spouse has committed domestic violence. 2 The court must consider both emotional distress
resulting from such domestic violence and any history of violence against the supporting party by the supported
party.3

There is a rebuttable presumption against the award of either temporary or permanent spousal support to a spouse
who is criminally convicted of a domestic violence misdemeanor or criminally convicted of another misdemeanor
that results in a sentence of probation under Section 1203.097 of the Penal Code against the other spouse within
five years prior to the filing of a dissolution proceeding, or at any time thereafter. 4 This presumption may be
rebutted by a preponderance of the evidence.5 The court may consider documented evidence of a convicted
spouse’s history as a victim of domestic violence perpetrated by the other spouse, or any other factors the court
deems just and equitable, as conditions for rebutting the presumption. 6 The criminal conviction of an abusive
spouse must be considered in making a reduction or elimination of a spousal support award in accordance with this
presumption.7 A plea of nolo contendere to a charge of misdemeanor domestic violence, made within the relevant
time period may be used as the basis for presumptively denying spousal support.8

11 Fam. Code § 4320(i); see also In re Marriage of Schu (2016) 6 Cal. App. 5th 470, 211 Cal. Rptr. 3d 413 ; In re Marriage of Freitas (2012)
209 Cal. App. 4th 1059; 147 Cal. Rptr. 3d 453; In re Marriage of MacManus (2010) 182 Cal. App. 4th 330, 337–338, 105 Cal. Rptr. 3d 785
(consideration of history of domestic violence in awarding temporary spousal support).

22 Fam. Code § 4320(i).

33 Fam. Code § 4320(i).

44 Fam. Code § 4325(a); see In re Marriage of Kelkar (2014) 229 Cal. App. 4th 833, 176 Cal. Rptr. 3d 905 (section 4325 applied
retroactively to case in which conviction occurred before 2002 effective date of statute); In re Marriage of Cauley (2006) 138 Cal. App. 4th
1100, 1106–1107, 41 Cal. Rptr. 3d 902 (spousal support terminated after wife’s postdissolution conviction for intraspousal domestic
violence, despite provision in marital settlement agreement that spousal support could not be modified or terminated).

55 Fam. Code § 4325(c).

66 Fam. Code § 4325(b).

77 Fam. Code § 4320(m).

88 Fam. Code § 4320(i); In re Marriage of Priem (2013) 214 Cal. App. 4th 505, 153 Cal. Rptr. 3d 842.
 Page 108 of 171
§ 51.44 Domestic Violence and Violent Sexual Felonies

■ PRACTICE TIP:

Courts are finally taking notice of the devastating effects on a victim of domestic violence. Not only are
there physical scars and emotional trauma, there are sometimes long-term consequences that impair a
victim-spouse’s ability to work and become self-supporting. Counsel should be prepared to present
competent evidence of such impairment as a significant element that justifies either higher support or longer
term support or both. If there is no criminal conviction for spousal abuse, a supported spouse can use the
findings and/or the issuance of a Domestic Violence Restraining Order as evidence of a history of domestic
violence. Typically, a finding means an actual permanent Restraining Order or the issuance of a Criminal
Protective Order or conviction. Commentary by Kathryn Kirkland and Sandra L. Mayberry

■ PRACTICE TIP:

This statutory factor on spousal support is a reason by itself for counsel to resist a court’s imposition of
mutual temporary restraining orders arising out of one or more instances of domestic violence. It is now
improper for a court to impose mutual restraining orders unless each party has filed a request for a domestic
violence restraining order and provides proof of such actions. Most courts will outright refuse to issue even a
stay-away order, without specific advise to parties that it is unenforceable. Commentary by Diana Richmond,
Kathryn Kirkland, and Sandra L. Mayberry

■ PRACTICE TIP:

Until January 1, 2016, the issue of domestic violence under Family Code § 4320 was only directed to the
perpetration of domestic violence by the supporting party. As a result of a particularly egregious example of
domestic violence in a dissolution case perpetrated by the supported party, the Legislature amended Family
Code § 4320(i) to include actions constituting domestic violence by the supported party. No former spouse
should be forced to finance their own abuse. Commentary by Kathryn Kirkland

If a spouse was criminally convicted of a domestic violence felony or a violent sexual felony against the other
spouse and the petition for dissolution is filed within five years after the conviction and any time served in custody,
on probation, or on parole, the court is prohibited from ordering the injured spouse to pay spousal support to the
convicted spouse.9 Nonetheless, if the convicted spouse presents documented evidence that they were a victim of
either a violent sexual offense or of domestic violence perpetrated by the other spouse, the court may determine that
this provision does not apply.1010

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

99 Fam. Code § 4324.5(a)(1).

1010 Fam. Code § 4324.5(c).

 2 California Family Law Prac & Proc 2d ed. § 51.45

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART C. POST-
JUDGMENT SUPPORT > Subpart 1. Factors Affecting Post-judgment Support Orders

§ 51.45 Retroactivity of Order

Unlike a temporary support order, which may be made retroactive to the date the petition for dissolution was filed, a
post-judgment support order may be made retroactive to a date no earlier than the date the request for order, notice
of motion, or order to show cause was filed.1

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

11 Fam. Code § 4333; see In re Marriage of Mendoza and Cuellar (2017) 14 Cal. App. 5th 939, 222 Cal. Rptr. 3d 420 (order for spousal
support could not be made retroactive to date petition for dissolution was filed, when there was no request for temporary spousal support).
 2 California Family Law Prac & Proc 2d ed. §§ 51.46–51.49

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART C. POST-
JUDGMENT SUPPORT > Subpart 1. Factors Affecting Post-judgment Support Orders

§§ 51.46–51.49 [Reserved]

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document
 2 California Family Law Prac & Proc 2d ed. § 51.50

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART C. POST-
JUDGMENT SUPPORT > Subpart 2. Retention of Jurisdiction and Duration of Order

§ 51.50 Need to Address Retention of Jurisdiction in Order or Judgment

In a marital settlement agreement or otherwise whether or not spousal support is actually ordered, the parties and
the court must consider the question of whether the court is to retain jurisdiction over the matter after entry of
judgment. If the court neither orders spousal support nor retains jurisdiction over spousal support, jurisdiction to
order support terminates, and no order may be made in the future.1

■ PRACTICE TIP:

It is highly advisable to be explicit in every agreement or judgment about whether jurisdiction is to be

retained. If it is not to be retained, state that the court does not retain jurisdiction to grant spousal support in
clear and unequivocal terms. Note that retention of jurisdiction is assumed unless it is specifically and
clearly stated that jurisdiction is terminated. If no support is ordered and no expectation of a support order
for either party exists, the agreement should state clearly that the court’s jurisdiction terminates as of the
date of the agreement. If support is for a finite period and/or a finite amount that is non-modifiable, then
there should be language included that terminates the court’s jurisdiction as of the date of the agreement to
modify the existing terms. If jurisdiction is to be retained, be specific about how long and under what
circumstances it is to be retained. One cannot dependably rely on statutory presumptions, in light of the
welter of highly fact-specific cases on the subject of whether jurisdiction has been retained. Commentary by
Diana Richmond and Kathryn Kirkland

Retention of jurisdiction is also fundamental to extending the duration of support if it is otherwise to terminate at
the end of a particular period.2 Related issues that should also be addressed by the parties are whether spousal
support is to be modifiable as to amount 3 and whether spousal support is to terminate by operation of law on the
death of either party or the remarriage of the supported spouse.4

11 See Bain v. Superior Court (1974) 36 Cal. App. 3d 804, 808–809, 111 Cal. Rptr. 848 ; see also Howell v. Howell (1894) 104 Cal. 45, 47,
37 P. 770; but see In re Marriage of Olsen (1994) 24 Cal. App. 4th 1702, 1706–1707, 30 Cal. Rptr. 2d 306 (under its equitable power, court
may set aside prior order terminating jurisdiction that was obtained by fraud, mistake, or accident).

22 See Fam. Code § 4335; § 51.52.

33 See Fam. Code §§ 3591, 3651; § 51.60.

44 See Fam. Code § 4337; In re Marriage of Thornton (2002) 95 Cal. App. 4th 251, 254, 115 Cal. Rptr. 2d 380; § 51.61.
 Page 112 of 171
§ 51.50 Need to Address Retention of Jurisdiction in Order or Judgment

■ PRACTICE TIP:

For orders entered before 2018, it is important to get competent tax advice as to the potential tax
consequences if spousal support does not terminate on the death of either party or if the amount of support is
for a short period of time, or there will be a significant decrease in support within three (3) years. The
resulting tax consequences of a spousal support order that does not terminate on death, or that has either of
the other two issues, can be enormous. Commentary by Kathryn Kirkland

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document
 2 California Family Law Prac & Proc 2d ed. § 51.51

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART C. POST-
JUDGMENT SUPPORT > Subpart 2. Retention of Jurisdiction and Duration of Order

§ 51.51 Manner of Retaining Jurisdiction

[1] Long-Term Marriage Under Family Code Section 4336

[a] Express Language Not Required

Except on written agreement of the parties to the contrary or a court order terminating spousal support, the
court retains jurisdiction indefinitely if the marriage is of long duration. 1 Thus, no express language
retaining jurisdiction is required in a spousal support order if the marriage is of long duration. Rather, the
rule is now that only specific language of termination will divest the court of its fundamental jurisdiction—
by either the parties’ agreement or a court order.2

■ PRACTICE TIP:

Counsel should use extreme care in drafting language that describes whether and under what
circumstances jurisdiction is to be retained or terminated. Ambiguity in phrasing has resulted in
several appellate decisions on this subject which were contrary to at least one party’s expectations
(see § 51.52). Commentary by Diana Richmond

Family Code Section 4336 applies to proceedings filed on or after January 1, 1988, and to proceedings
pending on January 1, 1988 in which the court had not entered a post-judgment support order or in which
the court order is subject to modification.3 For discussion of the law if Section 4336 does not apply, see [2],
below.

Because of the apparent mandatory nature of Family Code Section 4336, the court should make specific
findings as to whether the marriage is one of long-duration to which the statute applies ( see Form in §
51.103). For further discussion, see § 51.53 [2].

11 Fam. Code § 4336(a).

22 See In re Marriage of Ostrander (1997) 53 Cal. App. 4th 63, 65–66, 61 Cal. Rptr. 2d 348 (original stipulated dissolution judgment did not
mention spousal support); In re Marriage of Jones (1990) 222 Cal. App. 3d 505, 511–514, 271 Cal. Rptr. 761 (in long-term marriage,
termination of jurisdiction must appear expressly in agreement); cf. In re Marriage of Morrison (1978) 20 Cal. 3d 437, 446–447, 143 Cal.
Rptr. 139, 573 P.2d 41 (under prior law, jurisdiction terminated unless expressly reserved).

33 Fam. Code § 4336(d).

 Page 114 of 171
§ 51.51 Manner of Retaining Jurisdiction

Nothing in Family Code Section 4336 limits the right of a court to terminate all spousal support in later
proceedings on the ground of changed circumstances.4 For further discussion, see Chapter 52.

[b] What Constitutes Marriage of Long Duration

No bright line can be drawn to clearly determine if a marriage is of long duration. 5 However, there is a
presumption that affects the burden of providing evidence that a marriage of 10 years or more (from date of
marriage to date of separation) is of long duration. The court may consider periods of separation during the
marriage in determining whether the marriage is, in fact, of long duration. A marriage of less than 10 years
may, under the facts of a particular case, be considered of long duration. 6 Periods of nonmarital
cohabitation are not to be considered in determining the length of a marriage. 7
If the parties were married, divorced, and then remarried to each other, there is some conflict as to whether
the term of the first marriage may be considered. One court refused to consider a 12-year first marriage that
was followed by a period of divorce/cohabitation of over 20 years, and a brief second marriage. 8 Another
refused to limit support based on a marriage of less than four months because the parties had been
previously married for nineteen years, and divorced for only three. 9 While the cases are perhaps
distinguishable based on the length of the interval between marriages, the latter court relied heavily on the
continuing duty of support arising from the first marriage during the nonmarital period. 1010

[2] If Family Code Section 4336 Does Not Apply

Family Code Section 4336 does not apply if the court determines that the marriage is not of long duration, or to
nonmodifiable orders entered before January 1, 1988.1111 In these cases, the pre-1988 law still governs.
Under this law, a spousal support order carries within it, without the necessity of language to that effect, a
reservation of jurisdiction to modify it at any time prior to the expiration of the term for which it is ordered. 1212
This is true even if only a token amount, such as $1.00 per year, is ordered, and it is only for the purpose of
reserving jurisdiction that such an order is made. 1313 If no spousal support is ordered, jurisdiction is lost unless

44 Fam. Code § 4336(c).

55 In re Marriage of Prietsch & Calhoun (1987) 190 Cal. App. 3d 645, 663, 235 Cal. Rptr. 587.

66 Fam. Code § 4336(b).

77 In re Marriage of Bukaty (1986) 180 Cal. App. 3d 143, 151, 225 Cal. Rptr. 492.

88 See In re Marriage of Bukaty (1986) 180 Cal. App. 3d 143, 145–151, 225 Cal. Rptr. 492.

99 See In re Marriage of Chapman (1987) 191 Cal. App. 3d 1308, 1312–1316, 237 Cal. Rptr. 84.

1010 See In re Marriage of Chapman (1987) 191 Cal. App. 3d 1308, 1315–1316, 237 Cal. Rptr. 84.

1111 See Fam. Code § 4336(a), (b), (d); see, e.g., In re Marriage of Beck (1997) 57 Cal. App. 4th 341, 344–346, 67 Cal. Rptr. 2d 79
(improper for trial court to have reinstated support 16 years after expiration date).

1212 In re Marriage of Christie (1994) 28 Cal. App. 4th 849, 864, 34 Cal. Rptr. 2d 135 ; Dahlstet v. Dahlstet (1969) 272 Cal. App. 2d 174,
178, 77 Cal. Rptr. 45.

1313 See In re Marriage of Beust (1994) 23 Cal. App. 4th 24, 26, 28 Cal. Rptr. 2d 201 ; In re Marriage of Forcum (1983) 145 Cal. App. 3d
599, 605, 193 Cal. Rptr. 596.
 Page 115 of 171
§ 51.51 Manner of Retaining Jurisdiction

retained expressly in the order or by agreement. 1414 Therefore, jurisdiction may be reserved by a simple
recitation in the order without making a token order.1515

■ PRACTICE TIP:

Even the pre-1988 law cannot be relied on to terminate spousal support as of a certain date, without
specific and unambiguous language of termination. Note that in 1984, the Supreme Court decided In re
Marriage of Vomacka (1984) 36 Cal. 3d 459, 204 Cal. Rptr. 568, 683 P.2d 248 (retention of
jurisdiction until a certain date implicitly provided that if motion was brought before that date,
jurisdiction could be extended). Commentary by Diana Richmond

For further discussion of express retention of jurisdiction in relation to orders of spousal support for a limited
period, see § 51.52.
California Family Law Prac & Proc 2d ed.
Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

1414 See Cochran v. Cochran (1970) 13 Cal. App. 3d 339, 344, 91 Cal. Rptr. 630.

1515 See, e.g., In re Marriage of Liss (1992) 10 Cal. App. 4th 1426, 1428, 13 Cal. Rptr. 2d 397; In re Marriage of Wells (1988) 206 Cal. App.
3d 1434, 1436, 254 Cal. Rptr. 185; see also Form in § 51.116.
 2 California Family Law Prac & Proc 2d ed. § 51.52

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART C. POST-
JUDGMENT SUPPORT > Subpart 2. Retention of Jurisdiction and Duration of Order

§ 51.52 Jurisdiction to Extend Order Beyond Period of Express Limitation

[1] When Express Language Retaining Jurisdiction Is Required Under Family Code
Most retention-of-jurisdiction issues have arisen in the context of spousal support orders that order support for a
limited period of time. Before 1988, the statute provided that an order for spousal support for a fixed period of
time terminated at the end of the period specified and could not be extended unless the court retained
jurisdiction in the order.1

In 1987, the legislature added what is now Family Code Section 4336 to former Civil Code Section 4801(d), to
the effect that the court retained jurisdiction indefinitely if the marriage was of long duration ( see § 51.51[1]).
However, it was not clear whether this additional language entirely obviated the need for express language
retaining jurisdiction in the case of a long-term marriage, or whether it merely clarified that if jurisdiction were
expressly retained, it continued indefinitely; that is, beyond the termination date specified in the order. 2

In converting former Civil Code Section 4801(d) to the Family Code, the California Law Revision Commission
resolved the ambiguity in favor of the former construction. 3 Under Family Code Section 4335, an order for
spousal support terminates at the end of the period provided in the order and may not be extended unless the
court retains jurisdiction in the order or under Section 4336. Thus, it appears that if the court determines that
the marriage is of long duration under Family Code Section 4336(b), jurisdiction is retained automatically and
indefinitely over a spousal support order scheduled to terminate after a fixed term; 4 no express language

11 See former Civ. Code § 4801(d) prior to amendment made by Stats. 1987, ch. 1086; In re Marriage of Foreman (1986) 183 Cal. App. 3d
129, 133–134, 228 Cal. Rptr. 4.

22 See In re Marriage of Segel (1986) 177 Cal. App. 3d 1030, 1040–1041, 223 Cal. Rptr. 430. Under pre-1988 law, even if jurisdiction was
originally retained in the order, if the termination date passed before the supported spouse moved to modify the order or extend the date,
jurisdiction terminated on the date stated, and the court no longer had power to extend or modify the order. One reasonable construction of
the second sentence of former Civ. Code § 4801(d) is that on and after January 1, 1988, this limitation was to apply only in the case of a
short-term marriage. In a long-term marriage, a reservation of jurisdiction in the order was still required; however, once jurisdiction was
reserved, a supported spouse could move to modify the order or extend the term, even after the termination date set forth in the order had
passed.

33 See In re Marriage of Jones (1990) 222 Cal. App. 3d 505, 511–514, 271 Cal. Rptr. 761.

44 See Fam. Code § 4336(a), discussed in § 51.51[1][a].

 Page 117 of 171
§ 51.52 Jurisdiction to Extend Order Beyond Period of Express Limitation

retaining jurisdiction is required in the order. 5 Of course, there should now be an express finding that the
marriage is of long duration in order to obtain the effect of Section 4336 (see Form in § 51.103).

As so construed, Family Code Section 4335 shifts the focus of a rather voluminous body of case law regarding
retention of jurisdiction in limited-duration spousal support orders. A need for express language reserving
jurisdiction is now limited to those orders to which Family Code Section 4336 does not apply. These include
orders in short-term marriages and nonmodifiable orders entered before January 1, 1988. 6 This law is discussed
in [2], below. If Section 4336 does apply, then there must be an express termination of jurisdiction in the order. 7
This law is discussed in [3], below.

As long as the court has retained jurisdiction over spousal support ordered for a limited period, it has
fundamental jurisdiction to take new action concerning the support until that date. It may both modify the
amount of support (unless it is made nonmodifiable by agreement) 8 and extend the duration of support beyond
the termination date.9 However, some courts have construed language establishing a termination date as
retaining jurisdiction to modify as to amount, but not to extend the duration of support past the stated date 1010
(see [3], below).

■ PRACTICE TIP:

The above cases demonstrate that language simply reserving or retaining jurisdiction is insufficient.
In any spousal support order that orders support until a given date, whether it is to be included in an
agreement or otherwise and regardless of the length of the marriage, always consider both modification
of amount and extension of duration separately, and draft the order specifically as to each issue
separately. Commentary by Judge LaDoris Cordell

[2] What Constitutes Language Sufficient to Retain Jurisdiction

Many cases decided under the pre-1988 version of former Civil Code Section 4801(d) have addressed the
question of what language is sufficient to constitute an express retention of jurisdiction over spousal support
ordered for a limited duration. These cases must be read in context of the state of the law that required such
language in all cases, regardless of the length of the marriage (see [1], above). In that context, the loss of

55 But see In re Marriage of Christie (1994) 28 Cal. App. 4th 849, 861, 862 n5, 34 Cal. Rptr. 2d 135 (dicta suggesting that statute does not
alter prior rule). The court does not explain why the words “or under Section 4336” in Fam. Code § 4335 do not mean that no express
reservation of jurisdiction is required in a marriage of long duration.

66 See Fam. Code § 4336(a), (d); see, e.g., In re Marriage of Beck (1997) 57 Cal. App. 4th 341, 344–346, 67 Cal. Rptr. 2d 79 (improper for
trial court to have reinstated support 16 years after expiration date).

77 In re Marriage of Brown (1995) 35 Cal. App. 4th 785, 790, 41 Cal. Rptr. 2d 506; see In re Marriage of Ousterman (1996) 46 Cal. App. 4th
1090, 1094, 54 Cal. Rptr. 2d 403.

88 See Fam. Code § 3591; § 51.60.

99 In re Marriage of Vomacka (1984) 36 Cal. 3d 459, 474, 204 Cal. Rptr. 568, 683 P.2d 248; In re Marriage of Brown (1995) 35 Cal. App.
4th 785, 790–791, 41 Cal. Rptr. 2d 506; see In re Marriage of Maxfield (1983) 142 Cal. App. 3d 755, 762–763, 191 Cal. Rptr. 267.

1010 See In re Marriage of Zlatnik (1988) 197 Cal. App. 3d 1284, 1290, 243 Cal. Rptr. 454 (provision setting termination date also construed
as terminating jurisdiction on that date; motion to extend date brought before date denied); In re Marriage of Foreman (1986) 183 Cal. App.
3d 129, 133–134, 228 Cal. Rptr. 4; see also § 51.53.
 Page 118 of 171
§ 51.52 Jurisdiction to Extend Order Beyond Period of Express Limitation

spousal support, a fundamental right incident to marriage, was subject to strict interpretation. If the order was
vague or ambiguous with regard to the period of time for which a court could extend support, it was to be
construed in favor of a retention of jurisdiction. In fact, retention of jurisdiction need not have been expressly
stated at all, but could be implied.1111

Family Code Sections 4335 and 4336 reverse the need for express jurisdictional language with regard to long-
term marriages (see § 51.51[1][a], [b], above). In orders regarding these marriages, the parties must expressly
agree that jurisdiction is to terminate on a given date; otherwise it is retained indefinitely 1212 (see [3], below).
Express language retaining jurisdiction is still required with regard to short-term marriages, but in these
marriages, the protective policy concerns are of less significance (see § 51.53[3]).
In these cases, it has been held that no particular language in the order is required to avoid loss of
jurisdiction.1313 Any language in a spousal support order that suggests that modification of its terms will be
permitted is to be interpreted as a retention of the court’s fundamental jurisdiction to both modify and, on a
proper factual showing, to extend the order. 1414 However, one court has held that the power to modify must
derive from some express language in the order and not solely from the court’s inherent power to modify the
order, absent agreement to the contrary.1515
Retention of jurisdiction has been found in a provision giving only one party the right to seek modification and
expressly denying it to the other.1616 Another court rejected an asserted retention of jurisdiction to modify
spousal support based on a deferred sale of family home order (allowing the wife and children in her custody to
remain in the home and requiring husband to make mortgage payments). The court refused to characterize the
order as a form of spousal support because it was contingent on the minor children living there. 1717
If the court fails to reserve jurisdiction expressly in a judgment, but its intent to reserve is indicated in a
transcript, the judgment may later be modified by way of a correction of a clerical error to reserve
jurisdiction.1818
One court has held that in the absence of an express reservation, the parties may confer jurisdiction to modify or
extend a spousal support order by agreement. Thus, if the parties submit to the court’s jurisdiction for the
purpose of altering a support order by stipulation, they lose the right to complain about the court’s failure to
reserve jurisdiction in the original order.1919

1111 See In re Marriage of Vomacka (1984) 36 Cal. 3d 459, 466–467, 204 Cal. Rptr. 568, 683 P.2d 248.

1212 Fam. Code §§ 4335, 4336(a).

1313 In re Marriage of Keeva (1977) 66 Cal. App. 3d 512, 519, 136 Cal. Rptr. 82.

1414 In re Marriage of Vomacka (1984) 36 Cal. 3d 459, 470, 204 Cal. Rptr. 568, 683 P.2d 248 ; In re Marriage of Ousterman (1996) 46 Cal.
App. 4th 1090, 1098, 54 Cal. Rptr. 2d 403; In re Marriage of Benson (1985) 171 Cal. App. 3d 907, 911–912, 217 Cal. Rptr. 589.

1515 In re Marriage of Foreman (1986) 183 Cal. App. 3d 129, 134, 228 Cal. Rptr. 4 (also refusing to infer jurisdiction to extend duration of
support from express right to modify amount); accord In re Marriage of Beck (1997) 57 Cal. App. 4th 341, 345–346, 67 Cal. Rptr. 2d 79.

1616 See In re Marriage of Harbach (1987) 195 Cal. App. 3d 629, 634, 240 Cal. Rptr. 698; see also § 51.60[1][c]; but see In re Marriage of
Zlatnik (1988) 197 Cal. App. 3d 1284, 1290, 243 Cal. Rptr. 454, discussed in [3], below.

1717 In re Marriage of Katz (1988) 201 Cal. App. 3d 1029, 1035–1036, 247 Cal. Rptr. 562.

1818 In re Marriage of Sheridan (1983) 140 Cal. App. 3d 742, 746, 189 Cal. Rptr. 622; see Code Civ. Proc. § 473.

1919 In re Marriage of Segel (1986) 177 Cal. App. 3d 1030, 1042, 223 Cal. Rptr. 430.
 Page 119 of 171
§ 51.52 Jurisdiction to Extend Order Beyond Period of Express Limitation

[3] What Constitutes Language Sufficient to Terminate Jurisdiction

As noted in §§ 51.52[1][a] and [2], above, Family Code Section 4336 now places the burden on the parties to
expressly terminate (rather than retain) jurisdiction in their agreement in a marriage of long duration. Therefore,
the focus of construction of an agreement has shifted from whether the language is sufficient to retain
jurisdiction to whether it is sufficient to terminate it. As such, the rule that language is to be liberally construed
in favor of retaining jurisdiction (see [2], above) is now recast as a rule that language should be strictly
construed against terminating jurisdiction. In both cases, ambiguity must be decided in favor of the right to
spousal support.2020 In one case, for example, parties agreed to spousal support until death, remarriage, or a
certain date (January 31, 1995), whichever occurred first. They further agreed that the wife could not modify
the payments on any ground before that date. The appellate court held that because the agreement provided it
was nonmodifiable until a certain date, it appeared to permit modification if the wife requested support after
that date.2121

Similarly, in Marriage of Brown, the language of the agreement stated that after payment of the 60th
installment of spousal support, husband’s obligation shall terminate forever, and no court shall have any
jurisdiction to extend spousal support as to amount or duration after that date. 2222 The appellate court held that
this language did not expressly divest the court of jurisdiction before expiration of the term, and that therefore,
the court implicitly retained jurisdiction before the termination date to extend the duration of support. 2323
Nevertheless, the court reaffirmed that it is possible to draft a provision terminating jurisdiction to extend the
duration of support beyond a limited term.2424

One case in which sufficient language was found is Marriage of Zlatnick,2525 in which the agreement stated that
spousal support was to be for 7 years, and modifiable as to amount only during that time. The agreement
continued that “in no event, shall husband be obligated to pay spousal support to wife after [date].” The court
found that this language unequivocally expressed the parties’ intent to terminate jurisdiction to extend the term,
even though jurisdiction to modify until the termination date had been retained. 2626

An unequivocal expression of intention to terminate spousal support was also found when the court’s retention
of jurisdiction was limited to “sett[ling] any disputes arising from or to interpret this Judgment and to make any
further orders necessary to enforce the provisions of this judgment [;but] nothing contained in this paragraph
shall be deemed to modify the provisions re spousal support contained herein,” and the order contained a date
certain for express, irrevocable termination, before which termination could also occur on the happening of
several specific events—one of which did occur.2727

2020 In re Marriage of Brown (1995) 35 Cal. App. 4th 785, 790, 41 Cal. Rptr. 2d 506. See also In re Marriage of Schu (2014) 231 Cal. App.
4th 394 (construing language reserving jurisdiction to award spousal support “until Wife’s release from incarceration, either parties’ death,
the remarriage of Wife, [etc.]” to reserve jurisdiction until a reasonable time after the wife’s release from prison).

2121 In re Marriage of Ousterman (1996) 46 Cal. App. 4th 1090, 1094, 54 Cal. Rptr. 2d 403.

2222 In re Marriage of Brown (1995) 35 Cal. App. 4th 785, 787, 41 Cal. Rptr. 2d 506.

2323 In re Marriage of Brown (1995) 35 Cal. App. 4th 785, 788–791, 41 Cal. Rptr. 2d 506.

2424 In re Marriage of Brown (1995) 35 Cal. App. 4th 785, 790, 41 Cal. Rptr. 2d 506.

2525 In re Marriage of Zlatnik (1988) 197 Cal. App. 3d 1284, 1286, 243 Cal. Rptr. 454.

2626 In re Marriage of Zlatnik (1988) 197 Cal. App. 3d 1284, 1286, 1290, 243 Cal. Rptr. 454; see also In re Marriage of Foreman (1986) 183
Cal. App. 3d 129, 134, 228 Cal. Rptr. 4.
 Page 120 of 171
§ 51.52 Jurisdiction to Extend Order Beyond Period of Express Limitation

For a form that terminates jurisdiction to extend support beyond a limited term, see Chapter 214, § 214.66.
California Family Law Prac & Proc 2d ed.
Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

2727 In re Marriage of Iberti (1997) 55 Cal. App. 4th 1434, 1437, 1441, 64 Cal. Rptr. 2d 766.
 2 California Family Law Prac & Proc 2d ed. § 51.53

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART C. POST-
JUDGMENT SUPPORT > Subpart 2. Retention of Jurisdiction and Duration of Order

§ 51.53 When Court Should Retain Jurisdiction

[1] Factors to Be Considered

Except perhaps in the case of a marriage of long duration under Family Code Section 4336 (see [2], below), if
the retention of jurisdiction has not been resolved by agreement of the parties, the court must determine whether
the spousal support order should be formulated so as to terminate jurisdiction at some point in time. In
determining whether to retain jurisdiction indefinitely or terminate jurisdiction after a specified period, the
court must consider all of the factors in Family Code Section 4320 affecting the appropriateness of spousal
support in the first instance.1
Of these factors, the duration of the marriage 2 is one that must always be considered. 3 As a general principle,
the longer the marriage, the more likely it is that it will be an abuse of discretion for the court to fix a date for
termination of jurisdiction over the issue of future spousal support without a clear showing that it is reasonably
probable that the supported spouse will be self-sufficient by the termination date. 4 However, duration is not,
alone, determinative; all other factors must be considered and weighed. 5 For example, termination of
jurisdiction in a 10-year marriage might be appropriate if the parties were in their 30s but not if they were in
their 60s.6
In making its decision concerning retention of jurisdiction, the trial court must rely on the evidence in the
record and the reasonable inferences to be drawn from it and must not engage in speculation. 7 The trial court is
not required to base its decision on the mere numerical weight of the factors for and against retention of
jurisdiction, but, rather, on the relative weight of the factors in combination. 8

11 In re Marriage of Prietsch & Calhoun (1987) 190 Cal. App. 3d 645, 663, 235 Cal. Rptr. 587; In re Marriage of Kelley (1976) 64 Cal. App.
3d 82, 93–94, 134 Cal. Rptr. 259; see § 51.31.

22 See Fam. Code § 4320(f); § 51.37.

33 In re Marriage of Prietsch & Calhoun (1987) 190 Cal. App. 3d 645, 663–664, 235 Cal. Rptr. 587.

44 In re Marriage of Prietsch & Calhoun (1987) 190 Cal. App. 3d 645, 663, 235 Cal. Rptr. 587.

55 In re Marriage of Kelley (1976) 64 Cal. App. 3d 82, 93–95, 134 Cal. Rptr. 259.

66 See In re Marriage of Prietsch & Calhoun (1987) 190 Cal. App. 3d 645, 664, 235 Cal. Rptr. 587.

77 In re Marriage of Morrison (1978) 20 Cal. 3d 437, 453, 143 Cal. Rptr. 139, 573 P.2d 41.

88 In re Marriage of Kelley (1976) 64 Cal. App. 3d 82, 95, 134 Cal. Rptr. 259.
 Page 122 of 171
§ 51.53 When Court Should Retain Jurisdiction

■ PRACTICE TIP:
8.1
In re Marriage of Pendleton and Fireman (2000) 24 Cal. 4th 39.

These cases make it clear that it is important to make a detailed factual presentation to the court
regarding the factors that bolster either party’s position as to retention of jurisdiction. Mere speculation
or argument by counsel about future circumstances will not be sufficient. Most of the cases discussed
above are now over 20 years old. As the Supreme Court commented in In re Marriage of Pendleton
and Fireman,8.18.1 the societal perceptions regarding women have undergone a “sea change” since many
of the spousal support cases were decided. It is important when making a presentation regarding
retention of jurisdiction to include reasonable facts that reflect societal expectations. In many cases,
both parties worked outside the home during the marriage, but one or the other spouse limited their
income because of child care issues with the result that that spouse did not achieve the level of
professional success as did the other spouse. This discrepancy in professional success will have an
effect on the long-term support necessary for that spouse. The same principle applies to cases involving
older couples with long-term marriages. Commentary by Kathryn Kirkland

[2] Long-Term Marriage

In the case of a long-term marriage, Family Code Sections 4335 and 4336 clearly express the legislative policy
that jurisdiction should be retained indefinitely, and no express judicial action appears to be required to retain
jurisdiction9 (see § 51.51 [1]). This policy conforms to prior case law that generally considered it to be an abuse
of discretion to fail to retain jurisdiction over spousal support in a long-term marriage, at least absent clear
evidence that the supported spouse would achieve economic self-sufficiency by the termination date. 1010

However, the statutes appear to go even farther than this prior case law in that jurisdiction over support in long-
term marriages will be deemed automatically reserved in the absence of specific language of termination. 1111 In
one case, for example, the court rejected a former husband’s argument that the retained jurisdiction feature of
Family Code Section 4336(a) arises only for modification of a prior support award. Instead, the court found,
this section clearly provides two mechanisms for divesting the court of jurisdiction in long-term marriage cases:
the parties may agree to such termination or the court may order it. In either case, only specific language of
termination will divest the court of its fundamental jurisdiction, and in the absence of such language jurisdiction
will be deemed retained. While this court faced a situation in which the original dissolution judgment was silent
concerning spousal support and it did not rule directly on the propriety of an original order terminating support,
the case appears to support the view that a trial court still has discretion to make an order terminating support in
long-term marriage cases.1212

8.1

99 In re Marriage of Ostrander (1997) 53 Cal. App. 4th 63, 65–66, 61 Cal. Rptr. 2d 348.

1010 In re Marriage of Christie (1994) 28 Cal. App. 4th 849, 864–865, 34 Cal. Rptr. 2d 135; see In re Marriage of Morrison (1978) 20 Cal.
3d 437, 453, 143 Cal. Rptr. 139, 573 P.2d 41; In re Marriage of Brantner (1977) 67 Cal. App. 3d 416, 420, 136 Cal. Rptr. 635 (in long-term
marriage in which one spouse has stayed at home and acquired no marketable employment skills, other spouse’s support obligation is likely
to be of extended duration, even for life).

1111 In re Marriage of Ostrander (1997) 53 Cal. App. 4th 63, 65–66, 61 Cal. Rptr. 2d 348.

1212 In re Marriage of Ostrander (1997) 53 Cal. App. 4th 63, 65–66, 61 Cal. Rptr. 2d 348.
 Page 123 of 171
§ 51.53 When Court Should Retain Jurisdiction

In addition, in In re Marriage of Baker,1313 a marriage of just less than 10 years was treated as one of long
duration by the trial court, which then determined that an open-ended order with no termination of jurisdiction
was appropriate. In affirming, the appellate court made no mention whatsoever of the language of then Civil
Code Section 4801(d), now Family Code Section 4336,1414 which would seem to compel the result reached by
the trial court. Instead, the appellate court emphasized the broad discretion of the trial court in determining
whether or not to divest itself of jurisdiction over spousal support on a certain date. 1515 In fact, the court
expressly stated that a trial court must not be reluctant, and indeed has a duty, to fix a termination date for
spousal support if justified after considering the applicable circumstances of the case and the reasonable
inferences to be drawn from the evidence.1616 Thus, it seems that this court does not view Family Code Section
4336 as eliminating the court’s discretion to terminate jurisdiction over spousal support in a long-term marriage
on appropriate facts.1717

[3] Short-Term Marriage

In a marriage of short duration, one court has held that it is reversible error for a trial court to retain jurisdiction
over spousal support, if the spouse seeking retention of jurisdiction is in good health and permanently employed
at a self-supporting income level.1818 The legislative policy behind the former Family Law Act (now Family
Code) aims at ending support obligations so that former spouses may proceed to develop their future lives. 1919

If the court determines that some period of support is appropriate in a short-term marriage, the duration of the
marriage, considered alone, will usually support only a short-term spousal support order with a fixed
termination date.2020 As a general guideline, Family Code section 4320 provides that a reasonable period of
support, if the marriage was not long-term, is one-half the duration of the marriage. 2121 Long-term spousal
support may be denied in a short-term marriage even if the supported spouse has no capacity at all for economic
self-sufficiency.2222 Further, the court is not required to order sufficient support to maintain the supported

1313 In re Marriage of Baker (1992) 3 Cal. App. 4th 491, 4 Cal. Rptr. 2d 553.

1414 This language was added to former Civ. Code § 4801(d) by Stats. 1987, ch. 1086, and applies to all orders entered on and after January
1, 1988. See Fam. Code § 4336(d); § 51.51 [1]. In Baker, the marital status was dissolved in a bifurcated proceeding on December 30, 1988.
Thus, it seems clear that the statute applied in the case.

1515 In re Marriage of Baker (1992) 3 Cal. App. 4th 491, 498–500, 4 Cal. Rptr. 2d 553.

1616 In re Marriage of Baker (1992) 3 Cal. App. 4th 491, 500, 4 Cal. Rptr. 2d 553.

1717 Cf. In re Marriage of Christie (1994) 28 Cal. App. 4th 849, 861–865, 34 Cal. Rptr. 2d 135, in which the appellate court held that the trial
court erred in immediately terminating its jurisdiction to extend spousal support beyond specified date. The court discusses both the statutory
language of Fam. Code § 4336(a) and the policy arising from case law against terminating spousal support jurisdiction in long-term
marriages. But it is not clear whether the holding is that the court abused its discretion or committed an error of law in terminating
jurisdiction. The language stops short of stating that the order is now prohibited by the statute.

1818 In re Marriage of Hebbring (1989) 207 Cal. App. 3d 1260, 1266–1267, 255 Cal. Rptr. 488.

1919 In re Marriage of Hebbring (1989) 207 Cal. App. 3d 1260, 1267, 255 Cal. Rptr. 488.

2020 In re Marriage of Prietsch & Calhoun (1987) 190 Cal. App. 3d 645, 663, 235 Cal. Rptr. 587.

2121 Fam. Code § 4320(l); see In re Marriage of Left (2012) 208 Cal. App. 4th 1137, 1150, 146 Cal. Rptr. 3d 181.

2222 In re Marriage of Wilson (1988) 201 Cal. App. 3d 913, 917–920, 247 Cal. Rptr. 522 (affirming trial court’s determination that obligation
to support disabled person must shift, at some point, from short-term spouse to society); see also In re Marriage of Bukaty (1986) 180 Cal.
App. 3d 143, 147–150, 225 Cal. Rptr. 492.
 Page 124 of 171
§ 51.53 When Court Should Retain Jurisdiction

spouse at the marital standard of living in a short-term marriage, at least if the standard of living was not
created by the joint efforts of the spouses.2323
Nonetheless, although the court is required to consider the length of the marriage in determining the duration of
support, it has discretion to order indefinite support even if the marriage was of short duration, if other factors
weigh in favor of continued support.2424

■ PRACTICE TIP:

Although spousal support and child support are separate obligations, an important concern in
determining the duration of spousal support in a short-term marriage is whether there are young
children. It there are, often the court will order spousal support of longer duration. Commentary by
Diana Richmond

[4] Medium-Term Marriage

There is no statutory guidance or other bright line as to what might constitute a “medium-term” marriage, 2525
but jurisdictional issues seem to be particularly difficult in marriages of slightly less than or slightly more than
10 years in which the factors to be considered under Family Code Section 4320 indicate that spousal support is
appropriate.2626 In these marriages, the duration of the marriage, by itself, does not preclude the exercise of the
court’s discretion to terminate jurisdiction over future spousal support after a specified term. 2727 On the other
hand, it is generally not an abuse of discretion to make an open-ended spousal support order with no
termination of jurisdiction in such a case.2828

If the order is open-ended, there is currently some uncertainty as to whether the court may later terminate
support based solely on the passage of time in a medium-term marriage. 2929 For discussion, see Chapter 52.

If the court determines that support is appropriate in a medium-term marriage but also determines that the
duration should be limited, it should not make a finding that the marriage is of long duration under Family Code

2323 In re Marriage of Huntington (1992) 10 Cal. App. 4th 1513, 1520–1522, 14 Cal. Rptr. 2d 1 (involving unemployed spouses who lived
affluently on husband’s inherited wealth).

2424 In re Marriage of Left (2012) 208 Cal. App. 4th 1137, 1150, 146 Cal. Rptr. 3d 181 (court had discretion to order continued support
despite four year duration of marriage, when there was no evidence that wife had capacity to be self-supporting).

2525 See Fam. Code § 4336; In re Marriage of Prietsch & Calhoun (1987) 190 Cal. App. 3d 645, 663, 235 Cal. Rptr. 587; § 51.51[1][b].

2626 See, e.g., In re Marriage of Baker (1992) 3 Cal. App. 4th 491, 4 Cal. Rptr. 2d 553; In re Marriage of Heistermann (1991) 234 Cal. App.
3d 1195, 286 Cal. Rptr. 127.

2727 In re Marriage of Prietsch & Calhoun (1987) 190 Cal. App. 3d 645, 663, 235 Cal. Rptr. 587; but see In re Marriage of McTiernan &
Dubrow (2005) 133 Cal. App. 4th 1090, 1108–1109, 35 Cal. Rptr. 3d 287 (regarding marriage of nearly eight years, court erred by not
retaining jurisdiction beyond two-year cutoff date for post-judgment support).

2828 In re Marriage of Baker (1992) 3 Cal. App. 4th 491, 496–501, 4 Cal. Rptr. 2d 553.

2929 See In re Marriage of Baker (1992) 3 Cal. App. 4th 491, 502, 4 Cal. Rptr. 2d 553; In re Marriage of Heistermann (1991) 234 Cal. App.
3d 1195, 1201–1204, 286 Cal. Rptr. 127.
 Page 125 of 171
§ 51.53 When Court Should Retain Jurisdiction

Section 4336(b). Such a finding may have the effect of eliminating the court’s discretion to terminate
jurisdiction on a fixed future date.3030 For further discussion, see [2], above.
California Family Law Prac & Proc 2d ed.
Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

3030 See In re Marriage of Jones (1990) 222 Cal. App. 3d 505, 514 n.3, 271 Cal. Rptr. 761.
 2 California Family Law Prac & Proc 2d ed. §§ 51.54–51.59

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART C. POST-
JUDGMENT SUPPORT > Subpart 2. Retention of Jurisdiction and Duration of Order

§§ 51.54 –51.59 [Reserved]

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document
 2 California Family Law Prac & Proc 2d ed. § 51.60

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART C. POST-
JUDGMENT SUPPORT > Subpart 3. Nonmodification and Nontermination Agreements

§ 51.60 Agreement That Support Is Nonmodifiable

[1] Agreement Executed on or After January 1, 1970

[a] General Rule of Validity

Under current law, the general rule is that spousal support orders may be modified or terminated at any
time, whether the order was agreed to by the parties 1 or imposed by the court. 2 However, spousal support
may not be modified or terminated to the extent that a written agreement (or oral agreement entered into in
open court) between the parties specifically provides that the spousal support is not subject to modification
or termination.3 Current law applies to property settlement agreements entered into on or after January 1,
1970.4
The parties’ agreement that support may not be modified must be enforced by the court regardless of any
change of circumstances that might occur. 5 The parties are entitled to relinquish the possibility of a
potentially more beneficial support order in exchange for certainty in their rights and obligations. Because
of that certainty, both can better plan their affairs and adjust their lives to the new circumstances created by
the termination of marriage.6

If support is made nonmodifiable by agreement, it also cannot be “terminated,” in the sense of being
modified down to zero dollars, based on changed circumstances. 7 A nonmodifiable provision does not

11 See In re Marriage of Maytag (1994) 26 Cal. App. 4th 1711, 1713–1716, 32 Cal. Rptr. 2d 334 (not necessary that agreement be approved
by court and merged into judgment or order).

22 Fam. Code §§ 3591(a), 3651(a),(e); see Esserman v. Esserman (1982) 136 Cal. App. 3d 572, 578, 186 Cal. Rptr. 329 (court may also
modify agreement made after final judgment of dissolution); see also Fam. Code §§ 3591(b), 3651(c) (support may not be modified or
terminated as to amounts that accrued before moving papers were filed).

33 Fam. Code §§ 3591(c), 3651(d).

44 Fam. Code §§ 3593, 3651(f).

55 In re Marriage of Carletti (1975) 53 Cal. App. 3d 989, 995, 126 Cal. Rptr. 1 (oral agreement in open court); Tilghman v. Superior Court
(1974) 40 Cal. App. 3d 599, 613, 115 Cal. Rptr. 195 (written agreement).

66 In re Marriage of Hawkins (1975) 48 Cal. App. 3d 208, 213, 121 Cal. Rptr. 681 (finding no public policy bar to enforcement of
nonmodifiable support agreement).

77 In re Marriage of Bennett (1983) 144 Cal. App. 3d 1022, 1024–1026, 193 Cal. Rptr. 113; In re Marriage of Harris (1976) 65 Cal. App. 3d
143, 152, 134 Cal. Rptr. 891; cf. In re Marriage of Benjamins (1994) 26 Cal. App. 4th 423, 433, 31 Cal. Rptr. 2d 313 (modification in this
 Page 128 of 171
§ 51.60 Agreement That Support Is Nonmodifiable

avoid termination by operation of law on the remarriage of the supported spouse, 8 but may do so if there is
language or other evidence that such was the intent of the parties. 9 For further discussion, see § 51.61.

■ PRACTICE TIP:

Because of the high probability of misunderstanding, counsel should always be specific in

articulating what events do or do not terminate spousal support. Even though Family Code
Section 4337 provides for automatic termination on the death of either party or remarriage of the
supported spouse, it is always the better practice to articulate whether spousal support does or
does not terminate on these events. Commentary by Diana Richmond

Even a nonmodifiable support order may be modified if the support recipient is subsequently convicted of
domestic violence against the payor.1010
In reaching a spousal support agreement, the parties are presumed to be aware that, absent an express
prohibition against modification, the trial court has the power to modify or terminate support in accordance
with changed circumstances.1111 If the agreement does not contain a clause prohibiting modification, parole
evidence is inadmissible to prove that the parties intended that the support provisions be nonmodifiable.
However, extrinsic evidence may be admitted to prove the meaning of language reasonably susceptible to
an interpretation precluding modification.1212

[b] Language Required

If the parties intend that the spousal support provisions be nonmodifiable, they should clearly express that
intent in their written agreement or oral stipulation.1313 A nonmodifiable clause is set forth in Chapter 214.

Some earlier cases indicated a judicial willingness to find a nonmodifiable clause in general boiler plate
language in the agreement. In In re Marriage of Smiley,1414 a general provision in the agreement stated that
the agreement was not subject to modification and could not be amended except by an instrument in writing
signed by both parties. The court concluded that this language was sufficient to preclude modification of

sense should not be confused with true termination, in which the obligation to pay supports ends permanently).

88 See Fam. Code § 4337.

99 See In re Marriage of Thornton (2002) 95 Cal.App. 4th 251, 254–255, 115 Cal. Rptr. 2d 380; In re Marriage of Sherman (1984) 162 Cal.
App. 3d 1132, 1135–1139, 208 Cal. Rptr. 832; but see In re Marriage of Glasser (1986) 181 Cal. App. 3d 149, 152–153, 226 Cal. Rptr. 229.

1010 See Fam. Code § 4325; In re Marriage of Kelkar (2014) 229 Cal. App. 4th 833, 176 Cal. Rptr. 3d 905 (abusive wife’s argument that
stipulated judgment was nonmodifiable failed because public policy promoted by section 4325 rendered even expressly nonmodifiable
stipulated judgments modifiable).

1111 See Levitt v. Levitt (1965) 62 Cal. 2d 477, 482, 42 Cal. Rptr. 577, 399 P.2d 33.

1212 In re Marriage of Wright (1976) 54 Cal. App. 3d 1115, 1121 n.10, 126 Cal. Rptr. 894 ; see In re Marriage of Trearse (1987) 195 Cal.
App. 3d 1189, 1193, 241 Cal. Rptr. 257.

1313 See Fam. Code §§ 3591(c), 3651(d).

1414 In re Marriage of Smiley (1975) 53 Cal. App. 3d 228, 125 Cal. Rptr. 717.
 Page 129 of 171
§ 51.60 Agreement That Support Is Nonmodifiable

spousal support.1515 Similarly, a support agreement that characterized its terms as “absolute, unconditional,
and irrevocable” was held to be nonmodifiable. 1616 A provision in an agreement, stating that the agreement
“shall not depend for its effectiveness on [court] approval nor be affected thereby,” has also been held to be
a specific provision precluding judicial modification.1717
However, more recently, courts have generally reached the opposite result. These cases hold that, while no
“magic words” are required, there must be some specific unequivocal language directly on the question of
modification of spousal support.1818 Because a specific provision making spousal support nonmodifiable
may be easily drafted and inserted, the basic policy of modifiability should not be eroded by inferring
specific intent from boiler plate provisions.1919 Even if general boiler plate language is otherwise sufficient
to establish nonmodifiability, the language may be overcome by other language in the specific provision
related to spousal support that indicates an intent that support be subject to modification. 2020
It has also been held that a “step-down” support provision in a marital termination agreement, that is, one
that provides for payment of support but periodically reduces the amount until no more support is due (see
Form in § 51.113 [2]), does not by itself qualify as a specific provision making spousal support
nonmodifiable.2121

[c] Interrelationship With Reservation of Jurisdiction

An express provision in an agreement that a spousal support order may not be modified may also be
construed as a stipulation that jurisdiction is not to be retained to extend the order if it otherwise expires at
the end of a specific period. 2222 However, nonmodification and reservation-of-jurisdiction are not the same
thing, and language that otherwise would be sufficient to make the agreement nonmodifiable may be
insufficient to terminate jurisdiction if there is other specific language that is construed as a retention of
jurisdiction.2323 Conversely, the fact that spousal support remains modifiable as to amount does not
necessarily mean that jurisdiction is retained to extend the duration of support. 2424

1515 In re Marriage of Smiley (1975) 53 Cal. App. 3d 228, 232–233, 125 Cal. Rptr. 717.

1616 In re Marriage of Kilkenny (1979) 96 Cal. App. 3d 617, 619–620, 158 Cal. Rptr. 158.

1717 In re Marriage of Nielsen (1980) 100 Cal. App. 3d 874, 878, 161 Cal. Rptr. 272.

1818 Fukuzaki v. Superior Court (1981) 120 Cal. App. 3d 454, 458, 174 Cal. Rptr. 536 (provision that agreement is intended to be “final and
complete” settlement, including release of all obligations, is insufficient).

1919 In re Marriage of Hufford (1984) 152 Cal. App. 3d 825, 834–835, 199 Cal. Rptr. 726 (provision that agreement may not be altered,
amended, or modified except by instrument in writing executed by both parties is insufficient).

2020 In re Marriage of Forcum (1983) 145 Cal. App. 3d 599, 604–605, 193 Cal. Rptr. 596.

2121 In re Marriage of Jones (1990) 222 Cal. App. 3d 505, 509–511, 271 Cal. Rptr. 761.

2222 See, e.g., In re Marriage of Segel (1986) 177 Cal. App. 3d 1030, 1032–1033, 1040–1041, 223 Cal. Rptr. 430 ; see Fam. Code § 4336(a);
see also §§ 51.51, 51.52.

2323 In re Marriage of Ousterman (1996) 46 Cal. App. 4th 1090, 1098, 54 Cal. Rptr. 2d 403; In re Marriage of Forcum (1983) 145 Cal. App.
3d 599, 604–605, 193 Cal. Rptr. 596.

2424 In re Marriage of Zlatnik (1988) 197 Cal. App. 3d 1284, 1286, 1290, 243 Cal. Rptr. 454 ; In re Marriage of Foreman (1986) 183 Cal.
App. 3d 129, 131, 134, 228 Cal. Rptr. 4; see § 51.52[2].
 Page 130 of 171
§ 51.60 Agreement That Support Is Nonmodifiable

One court even construed a nonmodifiable clause as a reservation of jurisdiction to extend the order. In In
re Marriage of Harbach,2525 the parties agreed to a spousal support order that would expire on a specific
date. They further stipulated that the order could not be modified by the obligee-spouse, but could be
modified by the obligor-spouse on the happening of certain specified conditions. On the obligee’s motion,
the court modified the order by extending the term, despite the stipulation. It reasoned that the right of the
obligor to move to modify the order constituted a reservation of jurisdiction over the matter, allowing the
court to also consider the obligee’s motion. The dissenting judge did not dispute the court’s analysis of the
jurisdictional question, but criticized its failure to enforce the nonmodifiable provision of the order. The
dissent noted that whether or not the court retained jurisdiction, there was no basis not to give effect to the
agreement that had been entered into freely between the parties. 2626

■ PRACTICE TIP:

Harbach demonstrates the extent to which courts are willing to comb the agreement for
potential drafting ambiguity to reach a given result. Because of such cases, marital settlement
agreements should articulate separately the terms for modifiability as to amount and duration. If
support is fully modifiable, the agreement should say so; likewise, if support is to be modifiable
only under certain circumstances, those circumstances should be specified. In Harbach, the result
would likely have been different if counsel had spelled out that the amount could be modified by
the obligor under certain specified circumstances, but in no event would the duration extend
beyond the scheduled termination date. It is also prudent to state in the agreement that the parties
agree the court will not retain jurisdiction to extend support beyond the scheduled termination
date or, if the agreement is to be limited to its terms, to divest the court of jurisdiction over
spousal support as of the date of the agreement. Commentary by Diana Richmond

[2] Agreement Executed Before January 1, 1970

Current law applies to agreements entered into on or after January 1, 1970. As to agreements entered into
before that date, Chapter 1308 of the laws of 1967 applies. 2727 Chapter 1308 amended former Civil Code Section
139, which governed support before the enactment of the Family Law Act. Section 139, as amended by Chapter
1308, provided that amendments made to it in 1959, 1963, and 1967 were to apply only with respect to
agreements entered into after the effective date of the amendments. Thus, the law under Family Code Sections
3593 and 3651(f) and Chapter 1308 of Stats. 1967 is essentially that spousal support agreements are to be
governed by the law in effect when the agreement was entered into.

Before 1959, the pertinent paragraphs of former Civil Code Section 139 provided:
That portion of the decree or judgment [for divorce or separate maintenance] making any such
allowance or allowances [for spousal or child support], and the order or orders of the court to enforce the
same may be modified or revoked at any time at the discretion of the court except as to any amount that
may have accrued prior to the order of modification or revocation.

2525 In re Marriage of Harbach (1987) 195 Cal. App. 3d 629, 240 Cal. Rptr. 698.

2626 In re Marriage of Harbach (1987) 195 Cal. App. 3d 629, 634–636, 240 Cal. Rptr. 698 (Wiener, J., dissenting).

2727 Fam. Code §§ 3593, 3651(f).

 Page 131 of 171
§ 51.60 Agreement That Support Is Nonmodifiable

Except as otherwise agreed by the parties in writing, the obligation of any party in any decree, judgment
or order for the support and maintenance of the other party shall terminate upon the death of the obligor or
upon the remarriage of the other party.
The amendments to the second paragraph of this section enacted at the 1959 Regular Session of the
Legislature are effective only with respect to property settlement agreements entered into after the effective
date of such amendments.
The 1963 amendments to this section apply only with respect to agreements entered into after the
effective date of such amendments.
The 1967 amendments to this section apply only with respect to agreements entered into after the
effective date of such amendments.
Unlike current law,2828 the statute made no specific reference to support under an agreement of the parties, and
case law came to consider modifiability of the support provisions in an agreement as a question of contract law
outside of the statute.2929 Thus, the right to support on divorce could be addressed from two different
perspectives; the obligation could be created and governed by the agreement or contract of the parties; or it
could be “law-imposed” under the authority of Section 139, in which case it was called “alimony.” 3030
Alimony was subject to modification and revocation, and terminated on death or remarriage as set forth in
Section 139. However, if the support was contractual, it was nonmodifiable if the agreement was deemed to be
“integrated.”3131
An agreement was integrated if it provided that the provisions relating to division of property and the
provisions relating to support were reciprocal consideration. That is, the support provisions and the community
property division provisions were integrally intertwined, so that the support provisions were nonseverable. 3232 If
the agreement was determined not to be integrated, the support provisions were deemed to be in the nature of
alimony and subject to future modification on a showing of changed circumstances. 3333
Often, the judicial determination of whether an agreement was in fact integrated seemed to turn on magic words
rather than on the substance of the agreement. For example, an agreement between husband and wife providing
that the purpose of the parties is to reach a final settlement of their rights and duties with respect to both
property and support, that they intend each provision to be in consideration for each of the other provisions, and
that they waive all rights arising out of the marital relationship except those expressly set out in the agreement
was deemed conclusive evidence that an integrated agreement was intended. 3434 In some cases, integrated
agreements involved a trade-off, in which the wife accepted a less favorable division of property in exchange

2828 See Fam. Code §§ 3591(a), 3651(e); [1], above.

2929 See, e.g., Adams v. Adams (1947) 29 Cal. 2d 621, 627, 177 P.2d 265.

3030 See Messenger v. Messenger (1956) 46 Cal. 2d 619, 624–625, 297 P.2d 988; Hecht v. Hecht (1968) 259 Cal. App. 2d 1, 6, 67 Cal. Rptr.
293.

3131 See Messenger v. Messenger (1956) 46 Cal. 2d 619, 628, 297 P.2d 988; Dexter v. Dexter (1954) 42 Cal. 2d 36, 40, 265 P.2d 873.

3232 See Plumer v. Plumer (1957) 48 Cal. 2d 820, 824, 313 P.2d 549; Sprenger v. Superior Court (1969) 268 Cal. App. 2d 857, 860 n.1, 74
Cal. Rptr. 638.

3333 See Puckett v. Puckett (1943) 21 Cal. 2d 833, 840, 136 P.2d 1; In re Marriage of Matthews (1977) 74 Cal. App. 3d 683, 687, 141 Cal.
Rptr. 634.

3434 Di Marco v. Di Marco (1963) 60 Cal. 2d 387, 391, 33 Cal. Rptr. 610, 385 P.2d 2 ; In re Marriage of Matthews (1977) 74 Cal. App. 3d
683, 690, 141 Cal. Rptr. 634.
 Page 132 of 171
§ 51.60 Agreement That Support Is Nonmodifiable

for permanent (nonmodifiable) support. However, such a situation was not an absolute condition precedent to a
finding of integration.3535

Discontent with the law of integrated support agreements caused the legislature to enact a series of amendments
to former Civil Code Section 139 between 1959 and 1967. These amendments are chronicled in the case of
Heller v. Heller.3636 In 1959, child support provisions in an integrated agreement incorporated into a judgment
were made modifiable, but there was no change in the treatment of spousal support. 3737
In 1961, spousal support established in an integrated agreement was made modifiable. However, the legislature
further provided that the statute “shall not be construed to render an integrated property settlement agreement
modifiable when there are no minor children of the parties to the agreement.” 3838 As no effective date was
prescribed, it was presumed that this amendment applied only to agreements executed after it became the law
on September 15, 1961.3939
In 1963 the legislature repealed the 1961 language and returned the statute to its 1959 form. Once again, only
child support provisions in an integrated agreement were modifiable, but the repeal was prospective only. 4040
Therefore, with the exception of the period from September 15, 1961, to September 20, 1963, the law was that
spousal support provided for in an integrated agreement was nonmodifiable. In the interim period, it was
modifiable only when there were minor children of the marriage.4141

In 1967, former Civil Code Section 139 was again amended, and spousal support was finally made modifiable,
regardless of whether or not the provision was contained in an agreement, unless the agreement provided to the
contrary. The pertinent provisions of Section 139, as it read after the amendments made by Chapter 1308 of
Stats. 1967, effective November 8, 1967,4242 were:
The provisions of any agreement for the support of either party shall be deemed to be separate and
severable from the provisions of the agreement relating to property. All orders for the support of either
party based on such agreement shall be deemed law imposed and shall be deemed made under the power of
the court to make such orders. The provisions of any agreement or order for the support of either party

3535 See Dexter v. Dexter (1954) 42 Cal. 2d 36, 43–44, 265 P.2d 873.

3636 Heller v. Heller (1964) 230 Cal. App. 2d 679, 684–685, 41 Cal. Rptr. 177; see also Tremayne v. Striepeke (1968) 262 Cal. App. 2d 107,
117–118, 68 Cal. Rptr. 470; Hecht v. Hecht (1968) 259 Cal. App. 2d 1, 3–7, 67 Cal. Rptr. 293.

3737 See Stats. 1959, ch. 1399, effective September 18, 1959; Heller v. Heller (1964) 230 Cal. App. 2d 679, 684–685, 41 Cal. Rptr. 177.

3838 See Stats. 1961, ch. 2098.

3939 See Heller v. Heller (1964) 230 Cal. App. 2d 679, 685, 41 Cal. Rptr. 177.

4040 See Stats. 1963, ch. 861, effective September 20, 1963; Heller v. Heller (1964) 230 Cal. App. 2d 679, 685, 41 Cal. Rptr. 177.

4141 Whether the law of this interim period has any significance today is a question that will probably never be answered. It is clear that if
there were no minor children when the agreement was executed, the spousal support provisions were nonmodifiable, which is the same as the
law before and after the interim period. But what is the status of the law currently if there were minor children when the agreement was
executed? Did the legislature really mean “when there are no minor children” in the sense of time? If so, on all of their children’s attaining the
age of majority, the parents’ integrated agreement would then become nonmodifiable by operation of law. Since all children who were minors
during the interim period are now either adults or deceased, all once-modifiable agreements have now become nonmodifiable, and the 1961
amendment is of no further significance. Unfortunately, legislatures often use “when” in cases in which they mean “if.” The argument can be
made that if there were minor children at the time of execution, the agreement remains modifiable forever; that the 1961 legislature did not
intend that integrated agreements were to become nonmodifiable when the last child turned age 21. It is unlikely that this issue will ever be
resolved, save, perhaps, on the most invidious and insidious of law school exams.

4242 See Stats. 1967, vol. 1, p. A-3.

 Page 133 of 171
§ 51.60 Agreement That Support Is Nonmodifiable

shall be subject to subsequent modification or revocation by court order except as to any amount that may
have accrued prior to the order of modification or revocation, and except to the extent that any written
agreement, or if there is no written agreement, any oral agreement entered into in open court between the
parties, specifically provides to the contrary. All such orders of the court for the support of the other party,
even if there has been an agreement of the parties, may be enforced by the court by execution, contempt, or
by such other order or orders as the court in its discretion may from time to time deem necessary.
The amendments to the second paragraph of this section enacted at the 1959 Regular Session of the
Legislature are effective only with respect to property settlement agreements entered into after the effective
date of such amendments.
The 1963 amendments to this section apply only with respect to agreements entered into after the
effective date of such amendments.
The 1967 amendments to this section apply only with respect to agreements entered into after the
effective date of such amendments.
The effect of that amendment was to make all spousal support provisions of a property settlement agreement,
whether or not merged into the interlocutory decree, whether or not merely approved, and whether or not
“integrated” under the previous cases, modifiable unless the parties agreed to the contrary. 4343

The 1967 version of former Civil Code Section 139 was carried into the former Family Law Act. The first three
sentences of the amended section were contained in former Civil Code Section 4811(b), with only one minor
change; the words “except as to any amount that may have accrued prior to the order of modification or
revocation” were replaced by the words “except as to any amounts that may have accrued prior to the date of
filing of the notice of motion or order to show cause to modify or revoke.” The fourth sentence regarding
enforcement was covered by the broad language of former Civil Code Section 4380.

The Family Law Act statutes were carried forward into the Family Code without substantive change. 4444 The
first two sentences of former Civil Code Section 4811(b) are now Family Code Section 3590. The provisions in
former Civil Code Section 4811(b) related to modification of support by agreement are found in Family Code
Section 3591. They are reiterated in Family Code Section 3651. Former Civil Code Section 4380, on
enforcement, is Family Code Section 290. Thus, with the exception of the minor change related to retroactivity,
the current law on modification of support agreements (see [1], above) is the same as the law under former Civil
Code Section 139 on and after November 8, 1967, the effective date of Chapter 1308 of Stats. 1967.
California Family Law Prac & Proc 2d ed.
Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

4343 In re Marriage of Smiley (1975) 53 Cal. App. 3d 228, 232, 125 Cal. Rptr. 717; see In re Marriage of Harris (1976) 65 Cal. App. 3d 143,
150, 134 Cal. Rptr. 891; see also Sprenger v. Superior Court (1969) 268 Cal. App. 2d 857, 867–868, 74 Cal. Rptr. 638 ; Garrett v. Garrett
(1968) 258 Cal. App. 2d 407, 416, 65 Cal. Rptr. 580.

4444 See California Law Revision Commission Comments to Fam. Code §§ 3590, 3591.
 2 California Family Law Prac & Proc 2d ed. § 51.61

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART C. POST-
JUDGMENT SUPPORT > Subpart 3. Nonmodification and Nontermination Agreements

§ 51.61 Agreements Avoiding Termination by Operation of Law; Death, Remarriage,

Cohabitation

The death of either party or the remarriage of the supported spouse terminates the support obligation of the
supporting spouse by operation of law. 1 Also, there is a rebuttable presumption affecting the burden of proof that
the supported spouse has a decreased need for spousal support if they are cohabiting with a nonmarital partner. 2
However, these legal effects of death, remarriage, and cohabitation may be avoided by a written agreement of the
parties.3 For forms of these provisions, see Chapter 214. Even if an agreement does not expressly extend support
beyond remarriage or death, an extension may be implied if that was the clear intent of the parties. 4

Nevertheless, a written agreement to waive the provisions of Family Code Section 4337 must be specific and
express. Thus, for example, an agreement providing for nonmodifiability of a certain sum of spousal support, and
specifying that the support continue “until further Order of the Court, death of either party, or for a period until
March 1, 2003, whichever first occurs,” was held not to waive termination by operation of law 5 on remarriage.6 The
court stated that although no particular words are required for the waiver, “[o]n the other hand, silence will not do.” 7

■ PRACTICE TIP:

In order to provide an incentive for the supported spouse to remarry, a supporting spouse sometimes agree
to pay for support for a certain specific time period, such as a year, after remarriage and then terminates

11 Fam. Code § 4337; see In re Marriage of Glasser (1984) 181 Cal. App. 3d 149, 153, 226 Cal. Rptr. 229.

22 Fam. Code § 4323(a); In re Marriage of Bower (2002) 96 Cal. App. 4th 893, 900.

33 Fam. Code §§ 4323(a), 4337; In re Marriage of Thornton (2002) 95 Cal. App. 4th 251, 254–255, 115 Cal. Rptr. 2d 380.

44 See, e.g., Lucas v. Elliot (1992) 3 Cal. App. 4th 888, 893-894, 4 Cal. Rptr. 2d 746 (finding provision in agreement requiring payor to
maintain life insurance in amount of present value of support obligation as such an agreement, despite lack of express language continuing
support obligation after death); In re Marriage of McGhee (1982) 131 Cal. App. 3d 408, 414–415, 182 Cal. Rptr 456 (language of
interlocutory agreement and nature of agreement implied extension beyond remarriage).

55 See Fam. Code § 4337; see also § 52.44.

66 In re Marriage of Thornton (2002) 95 Cal. App. 4th 251, 254, 115 Cal. Rptr. 2d 380.

77 In re Marriage of Thornton (2002) 95 Cal. App. 4th 251, 254, 115 Cal. Rptr. 2d 380 ; see Johanson v. Comm’r (9th Cir. 2008) 541 F.3d
973, 977–978 (payments constituted alimony, taxable to payee, when agreement was silent as to termination at death, and payee’s extrinsic
evidence failed to establish that payments would continue past her death).
 Page 135 of 171
§ 51.61 Agreements Avoiding Termination by Operation of Law; Death, Remarriage, Cohabitation

absolutely. Commentary by Diana Richmond

There is perhaps some division of authority as to whether a general nonmodifiablity clause avoids termination by
operation of law on remarriage under Family Code Section 4337. One court has held that remarriage does not
terminate spousal support if the parties’ agreement states that support is not modifiable on any ground and fails to
expressly provide an exception for remarriage.8 However, other courts have held that agreements providing that
spousal support (1) simply was “nonmodifiable” or (2) “nonmodifiable for any reason whatsoever,” did not
preclude automatic termination by operation of law on the remarriage of the supported spouse. 9 The cases are
perhaps distinguishable in that in the first case, there was evidence, both in the agreement and extrinsic, that
nontermination on remarriage was the intent of the parties. In support of the latter view, no one appears to have ever
argued to an appellate court that support does not terminate by operation of law on the death of either party solely
by virtue of a general nonmodifiable clause. 1010 In a subsequent case, the court noted that termination and
modification are distinct concepts describing different ways to alter support obligations. It rejected the view that a
termination of support was simply a modification down to zero dollars, and refused to apply a nonmodifiable clause
to extend the payor’s obligation to make medical insurance premium payments after the death of the supported
spouse.1111

In another case, the court’s orders with respect to the parties’ marital settlement agreement were entered on a local
form, which indicated that Husband would pay Wife spousal support for a four year period. The local form included
a checkbox next to the sentence “Spousal support shall terminate upon the death of either party or the remarriage of
the supported party, or further order of the court, whichever occurs first.” The parties, who completed the
paperwork without the aid of counsel, did not check this box. The appellate court held that the husband’s failure to
check the box was sufficient to waive termination of support upon the wife’s remarriage. 1212

For further discussion of termination of support by death or remarriage, and of the effect of cohabitation, see
Chapter 52.

Make certain that any agreement specifically states what is intended regarding modifiability of support.
Why run the risk of taking anything for granted? If support is to terminate on remarriage, the agreement
should expressly so state, repeatedly if necessary—“support terminates on remarriage of the supported
spouse”—and not just rely on “operation of law.” Then an additional clause regarding nonmodifiability will

88 In re Marriage of Sherman (1984) 162 Cal. App. 3d 1132, 1135–1139, 208 Cal. Rptr. 832; see also In re Marriage of Cesnalis (2003)106
Cal. App. 4th 1267, 1275–1276, 131 Cal. Rptr. 2d 436 (husband waived right under Fam. Code § 4337 to terminate spousal support on wife’s
remarriage when nonmodifiability provision in stipulated judgment was expressly limited to three-year “duration of spousal support” that
“will not be modifiable under any circumstances” and that will end only if three years are up or one of parties dies).

99 See In re Marriage of Thornton (2002) 95 Cal. App. 4th 251, 254–255, 115 Cal. Rptr. 2d 380; In re Marriage of Glasser (1986) 181 Cal.
App. 3d 149, 151–153, 226 Cal. Rptr. 229.

1010 Cf. In re Marriage of Benjamins (1994) 26 Cal. App. 4th 423, 428, 432, 31 Cal. Rptr. 2d 313 (supported spouse’s assignee conceded that
spousal support terminated by operation of law on death, but argued that required payments of medical insurance premiums were not spousal
support and could not be terminated because of nonmodifiable clause).

1111 In re Marriage of Benjamins (1994) 26 Cal. App. 4th 423, 432–433, 31 Cal. Rptr. 2d 313.

1212 In re Marriage of Martin (2019) 32 Cal. App. 5th 1195, 244 Cal. Rptr. 3d 559.
 Page 136 of 171
§ 51.61 Agreements Avoiding Termination by Operation of Law; Death, Remarriage, Cohabitation

not come even remotely close to the Sherman disaster. Commentary by Ira Lurvey

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document
 2 California Family Law Prac & Proc 2d ed. §§ 51.62–51.69

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART C. POST-
JUDGMENT SUPPORT > Subpart 3. Nonmodification and Nontermination Agreements

§§ 51.62 –51.69 [Reserved]

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document
 2 California Family Law Prac & Proc 2d ed. § 51.70

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART C. POST-
JUDGMENT SUPPORT > Subpart 4. Enforcement Provisions Issued With Order

§ 51.70 Earnings Assignment Order

Whenever the court orders a party to pay spousal support, it must include in its order an earnings assignment order
directed at the obligor’s employer. The earnings assignment order directs the employer to withhold the amount of
support from the obligor’s earnings and to pay it directly to the obligee. 1 However, service of the order on the
employer may be stayed if the court makes a finding of good cause to stay service of the order. 2 Earnings
assignment orders are discussed in detail, and forms are provided, in Chapter 141.

■ PRACTICE TIP:

Of course, earnings assignment orders are of no use if the supporting spouse is self-employed. In this
instance, counsel can negotiate for or ask the court to order an automatic bank transfer of support payments
from the supporting spouse’s account to that of the supported spouse. This helps prevent late payments and
unilateral offsets from the spousal support amount. Counsel for the supported spouse can also request
security for payment of support. Commentary by Diana Richmond

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

11 Fam. Code § 5230; see Fam. Code § 150 (“support” as used in Family Code includes spousal support).

22 Fam. Code § 5260(a).

 2 California Family Law Prac & Proc 2d ed. § 51.71

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART C. POST-
JUDGMENT SUPPORT > Subpart 4. Enforcement Provisions Issued With Order

§ 51.71 Security for Payment

The court may order the supporting party to give reasonable security for payment of spousal support. 1 This
provision has been construed as authorizing the court, for example, to impress a lien on the paying spouse’s
separate property, including the community property distributed to him or her, to secure payment of spousal
support.2

The court may not impose such a lien on its own motion without notice, however. 3 Rather, notice of the application
for an order impressing a lien on the separate property of the paying spouse and an opportunity to be heard are
essential.4 That is, before the court may make such an order, it must first give the paying spouse an opportunity to
make a showing as to why security should not be ordered. 5 The power of the court to impose such a lien is a
delicate one and must be exercised with caution. The remedy is an extraordinary one that could directly affect the
marketability of the spouse’s title to the property and could have harsh results. Hence, it should be resorted to only
in cases in which less onerous remedies are not available. 6

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

11 Fam. Code § 4339.

22 See Sanguinetti v. Sanguinetti (1937) 9 Cal. 2d 95, 102, 69 P.2d 845; Miller v. Miller (1964) 227 Cal. App. 2d 322, 328, 38 Cal. Rptr. 571;
Rosenthal v. Rosenthal (1961) 197 Cal. App. 2d 289, 298, 17 Cal. Rptr. 186.

33 Blankenship v. Blankenship (1963) 212 Cal. App. 2d 736, 745, 28 Cal. Rptr. 176.

44 Clopton v. Clopton (1911) 161 Cal. 481, 483, 119 P. 651.

55 Blankenship v. Blankenship (1963) 212 Cal. App. 2d 736, 745–746, 28 Cal. Rptr. 176.

66 See Blankenship v. Blankenship (1963) 212 Cal. App. 2d 736, 746, 28 Cal. Rptr. 176; Loomis v. Loomis (1960) 181 Cal. App. 2d 345, 347,
5 Cal. Rptr. 550.
 2 California Family Law Prac & Proc 2d ed. § 51.72

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART C. POST-
JUDGMENT SUPPORT > Subpart 4. Enforcement Provisions Issued With Order

§ 51.72 Payment to County Officer

In any proceeding in which the court makes a spousal support order, the court may direct that payment be made to
the county officer designated by the court for that purpose. 1 The local child support agency will then enforce the
order.2 Although it is not expressly so limited, the purpose of this procedure is to allow a county to receive support
payments directly in cases in which the supported spouse has assigned her or his rights to the county as a condition
to receiving public benefits. 3 Enforcement of support by local child support agencies is considered in detail in
Chapter 141.

■ PRACTICE TIP:

Use of the Department of Child Support Services to collect spousal support helps prevent disputes over
amounts actually paid and timeliness of payments. It also limits direct contact between the former spouses
over support payments, which can be beneficial to both parties. Some supporting spouses use the check for
spousal support as a means of harassing the supported spouse by making snide comments in the “memo”
section or delaying payment by several days but not enough to be in arrears or by sending the check with a
child (which is detrimental to the child as well). Historically, each county had a local child support agency.
Several years ago, these responsibilities were transferred to the state as the Department of Child Support
Services. Although the name is “Department of Child Support Services,” the department is empowered to
collect spousal support as well.

Alternatively, the use of modern internet banking leaves a verifiable trail of payments made and received. If
payment is late or short, the supported spouse can act within a short period of time, which makes collections
and/or modifications more effective. The supporting spouse can set up an automatic payment which avoids
many of the difficulties of paper payments through the mail. However, some counties will only collect
spousal support if there are child support arrears or an existing order for child support. Commentary by
Kathryn Kirkland and Sandra L. Mayberry

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

11 Fam. Code § 4350; see Welf. & Inst. Code §§ 276(a), 279.

22 Fam. Code § 4351(a).

33 See Welf. & Inst. Code § 11477(a)(1).
 Page 141 of 171
§ 51.72 Payment to County Officer
End of Document
 2 California Family Law Prac & Proc 2d ed. §§ 51.73–51.99

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART C. POST-
JUDGMENT SUPPORT > Subpart 4. Enforcement Provisions Issued With Order

§§ 51.73– 51.99 [Reserved]

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document
 2 California Family Law Prac & Proc 2d ed. § 51.100

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART D. FORMS >
Subpart 1. Preliminary Considerations

§ 51.100 Income and Expense Declaration—Judicial Council Form

[1] Comment

[a] Use of Form

The form in [2], below, is the mandatory Judicial Council form of Income and Expense Declaration. 1 This
form, including its separate pages for Income Information, Expense Information, and Child Support
information, is often referred to as the “I&E.” A Copy of this form suitable for reproduction may be found
in the Judicial Council Forms volume of this set.

Note that when child support is not an issue, no information should be entered on page 4 of the form. For
related discussion of an I&E as it concerns a claim for child support, see Chapter 41.

[b] Income of Subsequent Spouse or Nonmarital Partner

The gross monthly income in line 12 on the expense information sheet (p. 3) calls for the gross monthly
income of persons who live in the home of the spouse filing the I&E. The form no longer distinguishes
between those whose expenses are included on the I&E and other cohabitants.

There is a presumption of decreased need for support if the supported party is cohabiting with a nonmarital
partner.2 However, the income of a supporting spouse’s subsequent spouse or nonmarital partner may not
be considered in determining spousal support.3 Therefore, a person who is not making a claim for spousal
support should not have to enter income information for any subsequent spouse or nonmarital partner. 4 For
discussion of subsequent spouse or partner income and child support, see Chapter 41, including the
example of the I&E set forth in that chapter.

[2] Form—Income and Expense Declaration

11 Cal. Judicial Council Form FL-150.

22 Fam. Code § 4323(a), discussed in ch. 52; In re Marriage of Bower (2002) 96 Cal. App. 4th 893, 900, 117 Cal. Rptr. 2d 520.

33 Fam. Code § 4323(b).

44 See also Harris v. Superior Court (1992) 3 Cal. App. 4th 661, 663–668, 4 Cal. Rptr. 2d 564 (constitutional right of privacy protects one
who is cohabiting with support obligor [undistinguished between subsequent spouses and other nonmarital cohabitants] from broad inquiry
into their financial affairs).
 Page 144 of 171
§ 51.100 Income and Expense Declaration—Judicial Council Form

Income and Expense Declaration—Judicial Council Form

California Family Law Prac & Proc 2d ed.
Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document
 2 California Family Law Prac & Proc 2d ed. § 51.101

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART D. FORMS >
Subpart 1. Preliminary Considerations

§ 51.101 Examination by Vocational Training Counselor

[1] Comment

The forms in [2] and [3], below, are for use in obtaining an order that a party be examined by a vocational
training counselor. The form in [2], below, is a declaration in support of a motion that a party be examined. 1
The form in [3], below, is a sample order to submit to the examination.
The order may be made only on motion, for good cause, and on notice to the party to be examined. The order
must specify the time, place, manner, conditions, scope of the examination, and the person or persons by whom
it is to be made.2 Vocational examinations are discussed further in § 51.41.

For discussion of how to present a motion in a family law matter, including examples of the Judicial Council
forms for Request for Order3 and Findings and Order After Hearing,4 see Chapter 95.

The Judicial Council form for Additional Page (MC-020) may be used to attach orders to the Findings and
Order After Hearing form that do not appear on the face of that form, such as the order in [3], below. The box in
line 8 of that form indicating that other orders are attached should be checked.

[2] Form—Declaration in Support of Motion for Examination by Vocational Training Counselor

Declaration in Support of Motion for Examination by Vocational Training Counselor

I, ______________________ [name], am the ______________________ [e.g., respondent] in this matter in
which ______________________ [name] has requested spousal support. ______________________ [Set forth
facts supporting motion, e.g., Petitioner is 45 years old and in good health. Petitioner has a Bachelor of Arts
degree from the University of California, but has not worked outside of the home during marriage in order to
devote time to domestic duties. The children of the marriage, however, are now adults].
I believe that Petitioner is now employable, or, at a minimum, could become employable within a reasonable
time with appropriate training or education. To that end, I request that Petitioner be examined by a vocational
training counselor, as authorized by Section 4331 of the Family Code.

11 See Fam. Code § 4331.

22 Fam. Code § 4331(b).

33 Cal. Judicial Council Form FL-300. The Request for Order (FL-300) replaces the former Judicial Council Application for Order and
Supporting Declaration (former FL-310), Notice of Motion (former FL-301), and Order to Show Cause (former FL-300) forms.

44 Cal. Judicial Council Form FL-340.

 Page 146 of 171
§ 51.101 Examination by Vocational Training Counselor

______________________ [Name] is a vocational training counselor who is qualified as required by Family

Code Section 4331(d) and (e) to conduct the examination. ______________________ [Name] has an office at
______________________ [address].

[3] Form—Order Requiring Examination by Vocational Training Counselor

Order Requiring Examination by Vocational Training Counselor

■ PRACTICE TIP:
The specifics of the order for vocational examination is to be attached to the Findings and Order
After Hearing, if the court so orders. However, the parties may agree to have a vocational evaluation
conducted for one party. Their agreement should be prepared as a stipulation for the court’s signature.
Commentary by Kathryn Kirkland

1. Petitioner ______________________ [name] shall be examined by ______________________ [name], a

vocational training counselor who is qualified under Family Code Section 4331, on ______________________
[date] at ______________________ [time] at ______________________ [address].
2. The scope of the examination shall be ______________________ [specify, e.g., limited to determining
whether petitioner is currently employable at a wage sufficient to allow petitioner to maintain the marital
standard of living, or if not, the approximate time and expense that would be required to provide petitioner with
sufficient training or education to become so employable. Intelligence testing shall not be administered].
3. The cost of the examination shall be paid by ______________________ [e.g., Respondent].
______________________ [date]
______________________ [signature]
Judge of the Superior Court
California Family Law Prac & Proc 2d ed.
Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document
 2 California Family Law Prac & Proc 2d ed. § 51.102

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART D. FORMS >
Subpart 1. Preliminary Considerations

§ 51.102 Spousal or Domestic Partner Support Declaration Attachment

[1] Comment
This optional Judicial Council form1 is for use by a party requesting or opposing permanent spousal or domestic
partner support, requesting or opposing modification of support, or asking the court to terminate its jurisdiction
to award support. The form may be attached to a Declaration for Default or Uncontested Judgment, 2 Request
for Order,3 Supporting Declaration for Attorney’s Fees and Costs Attachment,4 or other form.

The form is intended to help the parties address all of the statutory factors that the court must consider before
issuing a judgment under Family Code section 4320. It includes space to address each factor, but also indicates
that the party may address individual factors in separate attachments. In addition, it instructs the parties to
attach any evidence needed to document a history of domestic violence 5 or to rebut the presumption that the
party requesting support is prohibited from receiving support because of a misdemeanor conviction for
domestic violence.6

[2] Form

Spousal or Domestic Partner Support Declaration Attachment

California Family Law Prac & Proc 2d ed.
Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

11 Cal. Jud. Council Form FL-157.

22 Cal. Jud. Council Form FL-170.
33 Cal. Jud. Council Form FL-300.
44 Cal. Jud. Council Form FL-158.

55 See Fam. Code § 4320(i).

66 See Fam. Code §§ 4320(m), 4325.

 2 California Family Law Prac & Proc 2d ed. § 51.102A

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART D. FORMS >
Subpart 1. Preliminary Considerations

§ 51.102A Spousal or Family Support Order Attachment to Findings and Order After
Hearing, or Judgment—Judicial Council Form

[1] Comment
The form in [2], below, is the Judicial Council form of Spousal or Family Support Order Attachment, 1 for use as
an attachment to the parties’ stipulation or the Judicial Council Findings and Order After Hearing, 2 Restraining
Order After Hearing,3 or Judgment form.4 The form has been approved for optional use.

The form can be used by the court to make temporary orders and permanent orders in a judgment for spousal or
domestic partner support. When the form is used for a judgment of permanent support, it must include the
court’s findings under Family Code section 4320. These findings may be listed on the form itself, in an
attachment, or on Judicial Council Form FL-349, Spousal or Domestic Partner Support Factors Under Family
Code Section 4320—Attachment.5

[2] Form

Spousal or Family Support Order Attachment to Findings and Order After Hearing, or Judgment—
Judicial Council Form
California Family Law Prac & Proc 2d ed.
Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

11 Cal. Judicial Council Form FL-343.

22 Cal. Judicial Council Form FL-340.
33 Cal. Judicial Council Form DV-130.
44 Cal. Judicial Council Form FL-180.

55 See § 51.102B.
 2 California Family Law Prac & Proc 2d ed. § 51.102B

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART D. FORMS >
Subpart 1. Preliminary Considerations

§ 51.102B Spousal or Domestic Partner Support Factors under Family Code Section
4320—Attachment—Judicial Council Form

[1] Comment
The form below is an optional Judicial Council form that may be used for the court’s required findings on each
of the Family Code section 4320 spousal or domestic support factors. 1 It may be used as an attachment to the
parties’ stipulation or to an order awarding or denying support, including a Findings and Order After Hearing, 2
Judgment,3 or Restraining Order After Hearing (CLETS-OAH).4

[2] Form

Spousal or Domestic Partner Support Factors under Family Code Section 4320—Attachment—Judicial
Council Form
California Family Law Prac & Proc 2d ed.
Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

11 See In re Marriage of Shimkus (2016) 244 Cal. App. 4th 1262.

22 Cal. Jud. Council Form FL-340.
33 Cal. Jud. Council Form FL-180.
44 Cal. Jud. Council Form DV-130.
 2 California Family Law Prac & Proc 2d ed. § 51.103

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART D. FORMS >
Subpart 1. Preliminary Considerations

§ 51.103 Findings of Fact

[1] Comment

[a] Use of Form

The provisions in [2], below, are sample findings of fact with regard to the court’s spousal support order.
They may be used in connection with the Judicial Council Spousal Support Attachment to Findings and
Order After Hearing (see § 51.102A) or in a statement of decision (see [b], below). Although the form
below may be used for an order for temporary spousal support, the findings are more appropriately applied
to an order for permanent spousal support. These findings are not intended to present an all-inclusive list of
all factors that must be considered in support of the order made; rather, they are examples of some of the
most common issues that arise in ordering spousal support.

[b] Use of Statement of Decision

Findings may be made through a statement of decision under Code of Civil Procedure Section 632.1 That
statute requires that the statement must be requested before submission if the matter is concluded within
one calendar day or in less than eight hours over more than one day. Further, the request must specify the
controverted issues as to which the party is requesting the statement. These requirements have been found
to be somewhat unrealistic with regard to contested spousal support hearings because often the controverted
issues are not fully developed until after the evidence has been presented at the hearing. 2 However, Family
Code Section 4332 provides an independent basis, apart from Code of Civil Procedure Section 632, on
which a party may obtain appropriate factual determinations regarding spousal support after the hearing in
light of the evidence presented and the issues developed.3

■ PRACTICE TIP:

The issue of spousal support is one where the court has extremely broad discretion. Therefore,
it is all the more important for both the supported and the supporting spouses to understand the
court’s reasoning which resulted in the order made. A Statement of Decision is the only way to
obtain this information. However, all the court has to do under Family Code § 4320 is to

11 Fam. Code § 2338.

22 See In re Marriage of Ramer (1986) 187 Cal. App. 3d 263, 271, 231 Cal. Rptr. 647.

33 See In re Marriage of Davis (1983) 141 Cal. App. 3d 71, 76, 190 Cal. Rptr. 104.
 Page 151 of 171
§ 51.103 Findings of Fact

“consider” each factor in that statute. There is no requirement that the court give any weight to
any of those factors. In practice, in contested spousal support cases, the court almost always will
make detailed findings under § 4320. Commentary by Kathryn Kirkland and Sandra L. Mayberry

[c] Required Findings

The trial court should make specific findings for the purpose of guiding reviewing courts and courts that
may be called on to consider future motions to modify or terminate the support. 4

By statute, the court is required to make specific factual findings with respect to the standard of living
during marriage. And, at the request of either party, the court must make appropriate factual determinations
with respect to other circumstances. 5 Findings regarding the factors under Family Code Section 4320 that
the court deems critical in determining spousal support should be requested and made in all cases to assist a
reviewing court.6 A court is not required, however, to make separate findings regarding each circumstance
listed in Family Code Section 4320.7
An appellant’s failure to request findings (or a statement of decision) can be fatal to success on appeal,
because it means that the support order appealed from will be presumed correct with all presumptions
indulged to support it on matters on which the record is silent. Error must be affirmatively shown. 8
However, no such presumption or inference is permissible if the appellant brings an inadequate or
ambiguous statement of decision to the attention of the court before the entry of judgment. 9

Certain issues have been noted by reviewing courts as particularly important to clarify in the original order.
If the amount of support ordered is insufficient to meet the supported spouse’s needs at the marital standard
of living, the order should so specify. 1010 Such a finding is crucial to the power of the court to increase
support in the future based solely on the supporting spouse’s increased income. 1111 For further discussion,
see Chapter 52.
If the order is structured based on a particular expectation, for example, that the supported spouse will
become self-sufficient by a particular time, the expectation should be set forth in the order. This will assist
a future court in determining whether to modify or terminate support based on either the fulfillment or
failure of the expectation.1212

44 See In re Marriage of Laube (1988) 204 Cal. App. 3d 1222, 1226, 251 Cal. Rptr. 745.

55 Fam. Code § 4332.

66 See In re Marriage of Fenton (1982) 134 Cal. App. 3d 451, 457–458, 184 Cal. Rptr. 597 (remanding for reconsideration and appropriate
findings).

77 In re Marriage of Lucero (1981) 118 Cal. App. 3d 836, 845, 173 Cal. Rptr. 680.

88 In re Marriage of Laube (1988) 204 Cal. App. 3d 1222, 1226, 251 Cal. Rptr. 745.

99 Code Civ. Proc. § 634; see In re Marriage of Hoffmeister (1987) 191 Cal. App. 3d 351, 359–365, 236 Cal. Rptr. 543 (“Hoffmeister II”)
(remanding spousal support matter for lack of proper findings).

1010 In re Marriage of Smith (1990) 225 Cal. App. 3d 469, 491-493, 274 Cal. Rptr. 911.

1111 In re Marriage of Hoffmeister (1987) 191 Cal. App. 3d 351, 363–364, 236 Cal. Rptr. 543.
 Page 152 of 171
§ 51.103 Findings of Fact

In light of the apparent mandatory nature of Family Code Section 4336 (see § 51.53 [2]), it is extremely
important for the court to make a finding as to whether the marriage is one of long duration within the
meaning of that statute. If the court determines that, under the facts of the case, an open-ended spousal
support order is not appropriate and that jurisdiction should be terminated as of some specific time (see §
51.53), it should not find that the marriage is of long duration. The statute appears to require the court to
retain jurisdiction over support in a marriage of long duration.

[2] Form

Findings of Fact
With regard to the issue of spousal support, the court finds as follows:
1. The parties were married on ______________________ [date] and separated on ______________________
[date]. Therefore, this is/is not a marriage of long duration within the meaning of Family Code Section 4336,
and that statute ______________________ [applies or does not apply] to this matter.
2. Petitioner is ______________________ years old and Respondent is ______________________ years old.
______________________ [Specify facts concerning factors affecting appropriateness and amount of spousal
support, e.g., Both are in good health. The children of the marriage are in high school, and both parties may
engage in gainful employment without unduly interfering with the interests of the children].
3. The marital standard of living was ______________________ [describe generally, e.g., middle class;
comfortable, but not lavish]. Total marital net monthly income at the time of separation was approximately $
______________________.
4. ______________________ [Specify facts concerning supporting spouse’s ability to pay, e.g., Respondent
was employed at all times throughout the marriage, and is currently employed as sales manager of Giantco,
Inc.]. Respondent’s net monthly income of approximately $ ______________________ is/is not a reasonable
reflection of his earning capacity and support should be based on respondent’s ______________________
[actual earnings or earning capacity]. Respondent has the ability to pay spousal support. Respondent’s current
income is/is not sufficient to maintain both parties separately at the marital standard of living.
5. ______________________ [Specify facts concerning supported spouse’s ability to support himself or
herself, e.g., Petitioner has a bachelor of arts degree from the University of California, but was unemployed
during the marriage until 1991 to devote time to domestic duties. Since 1991, Petitioner has worked part time as
a graphic designer]. Petitioner’s current average monthly net income of approximately $
______________________ is insufficient to support herself/himself at the marital standard of living.
6. ______________________ [Specify facts concerning supported spouse’s needs, e.g., Petitioner’s reasonable
needs to maintain herself at the marital standard of living, considering the cost of living as of the date of
judgment, require approximately $ ______________________ per month of total net disposable income]. The
support to be ordered in this matter, together with Petitioner’s reasonably anticipated income, is/is not sufficient
to meet Petitioner’s reasonable needs.
7. ______________________ [Specify facts supporting termination of support after a particular period of time
and either retention or termination of jurisdiction, e.g., Support for a limited term is appropriate based on
Petitioner’s stated intention to attend community college to obtain additional training as a computer
programmer, which she anticipates will allow her to become self-supporting in approximately two years.
However, jurisdiction should be retained indefinitely to extend the duration of support should Petitioner, though
acting in good faith, be unable to achieve her objectives].

1212 See In re Marriage of Biderman (1992) 5 Cal. App. 4th 409, 413–414, 6 Cal. Rptr. 2d 791.
 Page 153 of 171
§ 51.103 Findings of Fact

■ PRACTICE TIP:
Although this form is designed to assist the court in preparing the Statement of Decision on the issue
of spousal support, which should be submitted by counsel as part of the pleadings on the issue of
spousal support, for the court to make findings, this form would also be very helpful if used as a basis
for a spousal support provision in the parties’ settlement agreement, assuming they can agree on most
or all of the provisions set forth above. Commentary by Sandra L. Mayberry and Kathryn Kirkland

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document
 2 California Family Law Prac & Proc 2d ed. §§ 51.104–51.109

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART D. FORMS >
Subpart 1. Preliminary Considerations

§§ 51.104 –51.109 [Reserved]

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document
 2 California Family Law Prac & Proc 2d ed. § 51.110

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART D. FORMS >
Subpart 2. Spousal Support Orders

§ 51.110 Open-Ended Order; Support for Indefinite Period

[1] Comment
The form in [2], below, is an open-ended spousal support order; that is, one for a stated amount for an indefinite
period. The order will terminate only on death or remarriage under Family Code Section 4337 (see Ch. 52).

■ PRACTICE TIP:
If this order is part of a stipulated judgment, counsel should be sure to specify all terminating
conditions, including remarriage and death of the supported spouse. Commentary by Diana Richmond

An order for support without a termination date contains within it a reservation of jurisdiction regardless of the
length of the marriage.1 Because no specific language of nonmodifiability is included, this order is subject to
future modification or termination on changed circumstances, except as to any amount that may have accrued
before the date of the filing of the request for order to modify or terminate. 2

[2] Form

Open-Ended Order; Support for Indefinite Period

______________________ [Supporting party, e.g., Respondent] is order to pay ______________________
[supported party, e.g., petitioner] spousal support in the sum of $ ______________________ per month,
______________________ [specify manner of payment, e.g., payable one-half on the first day of each month
and one-half on the fifteenth day of each month], commencing ______________________ [date], and
continuing thereafter until death of either party, remarriage of ______________________ [supported party,
e.g., petitioner], or further order of the court.
California Family Law Prac & Proc 2d ed.
Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

11 See Dahlstet v. Dahlstet (1969) 272 Cal. App. 2d 174, 178, 77 Cal. Rptr. 45; see also Fam. Code § 4336 (court retains jurisdiction
indefinitely if marriage is of long duration); § 51.51[1].

22 Fam. Code §§ 3591(a), (b), 3651(a), (c).

 2 California Family Law Prac & Proc 2d ed. § 51.111

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART D. FORMS >
Subpart 2. Spousal Support Orders

§ 51.111 Support for Limited Period; Jurisdiction Retained Indefinitely

[1] Comment

The form in [2], below, is a spousal support order for a limited period that includes specific language retaining
jurisdiction indefinitely. The express language retaining jurisdiction is required to accomplish this result in a
short-term marriage.1 The language is probably not necessary to retain jurisdiction in a marriage of long
duration under Family Code Section 4336. But because of some uncertainty as to the meaning and construction
of that statute, this language should be included in all cases in which an open-ended reservation of jurisdiction
is appropriate (see § 51.51[1][a]). For similar orders that retain jurisdiction only for a limited time, see § 51.112
and Chapter 214.

[2] Form

Support for Limited Period; Jurisdiction Retained Indefinitely

Respondent is ordered to pay petitioner spousal support in the sum of $ ______________________ per month
for a period of ____________ years, commencing on ______________________ [date], and ending after the
payment to be made on ______________________ [date], payable as follows: ______________________
[specify manner of payment, e.g., $ ______________________ on the first day of each month and $
______________________ on the fifteenth day of each month]. The court reserves jurisdiction indefinitely to
modify, extend the duration of, reinstate, or terminate support payments and jurisdiction over support on a
proper showing made to the court.
California Family Law Prac & Proc 2d ed.
Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

11 See Fam. Code § 4335.

 2 California Family Law Prac & Proc 2d ed. § 51.112

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART D. FORMS >
Subpart 2. Spousal Support Orders

§ 51.112 Richmond Order; Support for Limited Period With Limited Reservation of
Jurisdiction

[1] Comment

The form in [2], below, is a so-called “Richmond order.”1 A Richmond order is one that sets spousal support for
a presumptively fixed period based on evidence that the supported spouse will be self-supporting by the end of
the period, but retains jurisdiction to modify the amount and to extend the term as long as the supported spouse
acts before the date of termination. 2 The effect of the order is to shift the burden to the supported spouse to
show cause to extend the order.3 The failure to achieve self-sufficiency by the expected date can constitute the
change of circumstances necessary to support extension of the spousal support obligation. 4 Under a Richmond
order, jurisdiction is reserved only until the termination date. If that date passes without the supported spouse
having moved to extend the term, jurisdiction is terminated and the court has no further power to extend or
order spousal support.5 Accordingly, in drafting the order, it is important to specify that jurisdiction may be
extended as long as the proceedings are initiated before the termination date. Otherwise, the court’s order
extending jurisdiction must actually be entered before the termination date or jurisdiction is lost. 6

Additional statutory provisions must be taken into account in determining whether it is appropriate for a court
to make a Richmond order. This legislation requires a court, when making an order for spousal support, to
advise the support recipient of the need to make reasonable efforts to assist in providing for the recipient’s own
support needs, taking into account the particular circumstances the court considered under Family Code Section
4320, unless, in the case of a marriage of long duration as provided for in Family Code Section 4336 (see §

11 See In re Marriage of Richmond (1980) 105 Cal. App. 3d 352, 164 Cal. Rptr. 381.

22 In re Marriage of Prietsch & Calhoun (1987) 190 Cal. App. 3d 645, 665–666, 235 Cal. Rptr. 587.

33 In re Marriage of Khera & Sameer (2012) 206 Cal. App. 4th 1467, 143 Cal. Rptr. 3d 81; In re Marriage of Stallworth (1987) 192 Cal.
App. 3d 742, 755, 237 Cal. Rptr. 829; In re Marriage of Prietsch & Calhoun (1987) 190 Cal. App. 3d 645, 665–666, 235 Cal. Rptr. 587.

44 In re Marriage of Khera & Sameer (2012) 206 Cal. App. 4th 1467, 143 Cal. Rptr. 3d 81 ; In re Marriage of Pekar (1985) 173 Cal. App. 3d
367, 369–372, 218 Cal. Rptr. 823.

55 See In re Marriage of Prietsch & Calhoun (1987) 190 Cal. App. 3d 645, 665, 235 Cal. Rptr. 587; In re Marriage of Segel (1986) 177 Cal.
App. 3d 1030, 1040–1041, 223 Cal. Rptr. 430.

66 See In re Marriage of Carter (1994) 26 Cal. App. 4th 1024, 1030, 33 Cal. Rptr. 2d 1 (jurisdiction was to terminate on July 1; party moved
to extend on June 17, but matter was not heard until September 29. Court’s ruling that jurisdiction terminated on July 1 and it had no
jurisdiction to order spousal support on September 29 was affirmed based on lack of proper Richmond order language).
 Page 158 of 171
§ 51.112 Richmond Order; Support for Limited Period With Limited Reservation of Jurisdiction

51.37) the court decides this warning is inadvisable. 7 A related provision states the goal that a supported party
must become self-supporting within a reasonable period of time, with this period generally to be one-half the
length of the marriage (except in marriages of long duration)—keeping in mind that the court retains discretion
to order support for a greater or lesser time period based on any of the other factors in Family Code Section
4320 and the circumstances of the parties. 8 For a related discussion concerning long term marriages, see §
51.53[2]. For sample language parties may use in stipulating to the circumstances under which a support order
is made, see Chapter 214 (§ 214.123).

[2] Form

Richmond Order; Support for Limited Period With Limited Reservation of Jurisdiction
Respondent is ordered to pay petitioner spousal support in the sum of $ ______________________ per month
for a period of ____________ years, commencing on ______________________ [date], and through
______________________ [date], as follows: ______________________ [specify manner of payment, e.g., $
______________________ on the first day of each month and $ ______________________ on the fifteenth
day of each month]. The court reserves jurisdiction to modify the amount of, extend the duration of, or extend
jurisdiction over spousal support on a proper showing made to the court in proceedings initiated on or before
______________________ [restate termination date above]. If support or jurisdiction over support is not
extended beyond that date pursuant to a request for order brought on or before that date, the court’s jurisdiction
over spousal support shall terminate on that date, and thereafter, the court shall no longer have jurisdiction to
award any additional spousal support to ______________________ [supported spouse, e.g., petitioner],
regardless of any subsequent change in circumstances. Spousal support [shall or shall not] terminate on the
remarriage of ______________________ [e.g., petitioner] before ______________________ [restate above
ending date].
California Family Law Prac & Proc 2d ed.
Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

77 Fam. Code § 4330(b).

88 Fam. Code § 4320(l).

 2 California Family Law Prac & Proc 2d ed. § 51.113

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART D. FORMS >
Subpart 2. Spousal Support Orders

§ 51.113 Substantive Step-Down or Step-Up in Amount

[1] Comment
The form in [2], below, may be used as either a step-down or step-up spousal support order; that is, one that
requires payment of a specified amount for a fixed period and specified lesser or greater amounts thereafter for
an additional period or periods.
Such an order must address the question of jurisdiction at the end of the last term specified in the order.
Jurisdiction may either be terminated without further recourse on that date (see form in Ch. 214), retained
indefinitely after the date passes (see form in § 51.111), or terminated on that date unless the supported spouse
moves to extend duration before that date (see Richmond Order in § 51.112). Whether the amounts of the
various levels of payments are subject to future modification should also be addressed, 1 as should the question
of termination on the death of either party or the remarriage of the supported spouse before the last date on
which payments are due.2 Nonmodifiability must be by agreement and expressed in the order. 3 Otherwise, the
order is subject to future modification and termination.4
As a general rule, any change of support ordered to take place in the future must be based on reasonable
inferences drawn from the evidence, not mere hopes or speculative expectations. 5 Step-down orders have been
approved in cases in which there was evidence that the supported spouse’s needs would decrease because of
potential employment.6

11 See In re Marriage of Jones (1990) 222 Cal. App. 3d 505, 509–511, 271 Cal. Rptr. 761 (step-down order is not per se nonmodifiable).

22 See Fam. Code § 4337; § 51.61.

33 Fam. Code §§ 3591(c), 3651(d).

44 Fam. Code §§ 3591(a), 3651(a).

55 In re Marriage of Harrison (1986) 179 Cal. App. 3d 1216, 1230, 225 Cal. Rptr. 234 ; In re Marriage of Martinez (1984) 156 Cal. App. 3d
20, 34 n.6, 202 Cal. Rptr. 646 (to support step-down there must be proof that supported spouse’s earnings will improve or that their needs
will decrease or that the supporting spouse’s ability to pay will decrease); see In re Marriage of Cheriton (2001) 92 Cal. App. 4th 269, 308–
310, 111 Cal. Rptr. 2d 755; In re Marriage of Prietsch & Calhoun (1987) 190 Cal. App. 3d 645, 658–659, 235 Cal. Rptr. 587 (no evidence to
support step-down).

66 In re Marriage of West (2007) 152 Cal. App. 4th 240, 248, 60 Cal. Rptr. 3d 858; In re Marriage of Ackerman (2006) 146 Cal. App. 4th
191, 212–213, 52 Cal. Rptr. 3d 744; In re Marriage of Kelley (1976) 64 Cal. App. 3d 82, 94–95, 134 Cal. Rptr. 259; In re Marriage of
Dennis (1973) 35 Cal. App. 3d 279, 282–284, 110 Cal. Rptr. 619; see In re Marriage of Andreen (1978) 76 Cal. App. 3d 667, 672, 143 Cal.
Rptr. 94; see also In re Marriage of Rising (1999) 76 Cal. App. 4th 472, 479 n.9, 90 Cal. Rptr. 2d 380 (in modification action, when court
finds change of circumstances justifying support decrease, court may allow decrease to be phased in over time, provided at time order issued,
court had discretion to reduce support to final step-down amount).
 Page 160 of 171
§ 51.113 Substantive Step-Down or Step-Up in Amount

A step-down order was disapproved insofar as it reduced support each year for three years even though there
was no showing that needs would be less, but approved insofar as it reduced the amount to $1 after four years
because there was evidence that the supported spouse would have completed her education in that time. 7 A step-
up in spousal support payments was approved based on the evidence that the supporting spouse would resume
full-time employment at the time when support would be increased. 8

[2] Form

Substantive Step-Down or Step-Up in Amount

Respondent is ordered to pay petitioner spousal support in the sum of $ ______________________ per month
for ____________ years, commencing ______________________ [date] and ending
______________________ [date]; thereafter, the sum of $ ______________________ per month for
____________ years, commencing on ______________________ [date] and ending
______________________ [date]. The amount of spousal support payments for these periods shall/shall not be
subject to future modification or termination. Spousal support shall/shall not terminate should Petitioner
remarry before the above-stated termination date. Jurisdiction over spousal support shall terminate on
______________________ (date of last payment), and this court does not retain jurisdiction to extend the
duration of support past that date, regardless of whether proceedings are commenced before or after that date].
California Family Law Prac & Proc 2d ed.
Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document

77 In re Marriage of Smith (1978) 79 Cal. App. 3d 725, 739–741, 145 Cal. Rptr. 205.

88 In re Marriage of Acosta (1977) 67 Cal. App. 3d 899, 902–903, 137 Cal. Rptr. 33.
 2 California Family Law Prac & Proc 2d ed. § 51.114

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART D. FORMS >
Subpart 2. Spousal Support Orders

§ 51.114 Payment of Debts

[1] Comment
The form in [2], below, is a spousal support order for support in the form of payment to a creditor of the
supported spouse. If payment of an obligation would benefit a party to a family law proceeding, the court may
order the other party to pay the obligation, or a portion of it, directly to the creditor. 1 The creditor has no right to
enforce the order directly against the spouse ordered to make the payment; but the creditor’s rights are in no
way affected by the order.2 Ordering direct payment protects the supporting spouse by assuring that the debt is
paid.3
Direct payments to creditors for the benefit of the supported spouse are part of the supporting spouse’s spousal
support obligation.4 They may be ordered for either overdue or future obligations. 5 With regard to periodic
obligations to fall due in the future, a direct payment order is appropriate if there is a need for spousal support
and the total support ordered (payments to creditors plus payments directly to spouse) is reasonable. 6
Court-ordered direct payments of past obligations incurred during marriage (community obligations) are a
different matter. If such a direct-payment order results in an unequal division of community property, it is
questionable whether the order is appropriate as a form of spousal support because it confuses the discretionary
right to spousal support with a spouse’s absolute right to an equal division of the community assets. 7

11 Fam. Code § 2023(a).

22 Fam. Code § 2023(b).

33 See In re Marriage of Higgason (1973) 10 Cal. 3d 476, 488, 110 Cal. Rptr. 897, 516 P.2d 289 (disapproved on another point in In re
Marriage of Dawley (1976) 17 Cal. 3d 342, 352, 131 Cal. Rptr. 3, 551 P.2d 323).

44 In re Marriage of Smith (1978) 79 Cal. App. 3d 725, 748, 145 Cal. Rptr. 205.

55 See In re Marriage of Chala (1979) 92 Cal. App. 3d 996, 1000, 155 Cal. Rptr. 605.

66 In re Marriage of Chala (1979) 92 Cal. App. 3d 996, 1002, 155 Cal. Rptr. 605; see In re Marriage of De Guigne (2002) 97 Cal. App. 4th
1353, 1367, 119 Cal. Rptr. 2d 430 (payments for future living expenses do not include refundable rent or security deposits); In re Marriage of
Garcia (1990) 224 Cal. App. 3d 885, 892, 274 Cal. Rptr. 194 (payment of continuing debt to third party is form of spousal support if related
to living expenses); In re Marriage of Smith (1978) 79 Cal. App. 3d 725, 748, 145 Cal. Rptr. 205.

77 See In re Marriage of Brown (1976) 15 Cal. 3d 838, 848, 126 Cal. Rptr. 633, 544 P.2d 561 (discussed in § 51.04); see also In re Marriage
of Fonstein (1976) 17 Cal. 3d 738, 748, 131 Cal. Rptr. 873, 552 P.2d 1169 (parties entitled to equal division of net community estate,
subtracting community obligations from community assets).
 Page 162 of 171
§ 51.114 Payment of Debts

In one case, the court of appeal rejected a direct-payment order that resulted in an unequal division of
community property and ordered the community obligations to be paid from community cash on hand. The
court stated that the trial court should have considered the appropriateness of spousal support separately
according to the appropriate statutory standards. 8 However, the court’s reasoning suggested that under some
circumstances, such an order would be appropriate if the amount ordered to be paid directly to creditors was, in
fact, reflective of a reasonable spousal support order. 9 Shortly thereafter, the same court confronted a similar
case and held that an unequal distribution of community obligations could not stand as spousal support because
the spouse ordered to make the payments was already ordered to pay a reasonable amount of spousal
support.1010 Again, the court suggested that the direct-payment order might be valid if it were in lieu of, rather
than in addition to, reasonable support. 1111 However, the court also noted another problem with casting an
unequal division of community obligations as spousal support. In the absence of an agreement, a spousal
support obligation terminates on the death of either party or on remarriage of the supported spouse. 1212 An order
to directly pay community obligations would not reasonably be expected to terminate on the happening of these
events.1313 This difficulty demonstrates the problem of attempting to resolve community estate issues through
spousal support orders and suggests that such an order is not appropriate (see § 51.04).

If direct payment of community debts cannot be characterized as spousal support, the payor spouse is entitled to
Epstein credits to equalize the division of the community estate. 1414 Whether a given payment is, in reality, in
discharge of an obligation of support or simply the discharge of a community obligation is determined on the
basis of the nonpaying spouse’s need for support, and whether the payment was in lieu of support, or in
addition to reasonable support already being provided. 1515 For full discussion of property and debt division
issues, including Epstein credits, see Chapters 20–25.

If the direct payment order is properly characterized as spousal support, alimony tax treatment is proper. 1616 For
further discussion, see Chapter 160.

■ PRACTICE TIP:

Although the statute permits the payment of debt as a form of spousal support, it is fraught with
difficulties. The term “debt” is confusing, as the cases illustrate. In addition, the cited cases are quite

88 In re Marriage of Chala (1979) 92 Cal. App. 3d 996, 1003, 155 Cal. Rptr. 605.

99 In re Marriage of Chala (1979) 92 Cal. App. 3d 996, 1001–1003, 155 Cal. Rptr. 605 (analyzing In re Marriage of Epstein (1979) 24 Cal.
3d 76, 82–86, 154 Cal. Rptr. 413, 592 P.2d 1165, in which Supreme Court held that spouse who, after separation, voluntarily discharges
community debts with separate property is entitled to reimbursement from community unless payment is made to discharge duty of support).

1010 In re Marriage of Marx (1979) 97 Cal. App. 3d 552, 557–558, 159 Cal. Rptr. 215.

1111 In re Marriage of Marx (1979) 97 Cal. App. 3d 552, 558, 159 Cal. Rptr. 215.

1212 Fam. Code § 4337; ch. 52.

1313 In re Marriage of Marx (1979) 97 Cal. App. 3d 552, 558–559, 159 Cal. Rptr. 215.

1414 In re Marriage of Garcia (1990) 224 Cal. App. 3d 885, 894–895, 274 Cal. Rptr. 194; see In re Marriage of Epstein (1979) 24 Cal. 3d
76, 154 Cal. Rptr. 413, 592 P.2d 1165.

1515 In re Marriage of Garcia (1990) 224 Cal. App. 3d 885, 893, 274 Cal. Rptr. 194.

1616 Temp. Treas. Reg. § 1.71-1T, Q-6, 7; see I.R.C. § 71(b)(1)(A).

 Page 163 of 171
§ 51.114 Payment of Debts

old and are unlikely to be strong support for a demand that payments of debt be a form of spousal
support. If, however, the concept of “debt” is strictly limited to payment for the benefit of the
supported spouse for necessities, such as rent or mortgage, it may be appropriate. Commentary by
Kathryn Kirkland

[2] Form

Payment of Debts
As additional spousal support, Respondent shall pay directly to ______________________ [name of creditor]
on behalf of Petitioner the actual cost of ______________________ [specify, e.g., Petitioner’s tuition],
beginning ______________________ [date], and continuing until ______________________ [date], or until
further order of this court. Payments shall be made on or before ______________________ [specify, e.g., the
due date for payment of tuition each semester as established by the University of California].
California Family Law Prac & Proc 2d ed.
Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document
 2 California Family Law Prac & Proc 2d ed. § 51.115

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART D. FORMS >
Subpart 2. Spousal Support Orders

§ 51.115 Provisions for Support After Death of Supporting Party

[1] Comment

[a] Use of Form

The forms in [2], [3], and [4], below, are examples of orders intended to provide a substitute for spousal
support which provide for the supported spouse if the supporting spouse dies before the supported spouse.
These devices are not spousal support, but rather are replacements for direct payments by the supporting
spouse.1 In structuring spousal support, the court may order the supporting spouse to purchase an annuity
(see [2], below), maintain life insurance (see [3], below), or establish a trust (see [4], below) for the benefit
of the supported spouse so that the supported spouse will not be left without means for support if spousal
support is otherwise terminated by the death of the supporting spouse. 2 Except as otherwise agreed to by the
parties in writing, the order may be modified or terminated at the discretion of the court at any time before
the death of the supporting spouse.3 The court may also order the supporting spouse to cooperate in the
supported spouse’s purchase of insurance on the supporting spouse’s life, by requiring the supporting
spouse to apply for life insurance naming the supported spouse as beneficiary—that the supported spouse
will pay for (see [5], below). This is not, however, treated as an order under Family Code Section 4360, but
an order under the court’s general power to make orders on specific family law matters, including support
and injunctive relief.4

■ ALERT:
5
See P.L. 115-97, Title I, Subtitle A, Part V, § 11051(b)(1)(B).
6
P.L. 115-97, Title I, Subtitle A, Part V, § 11051(c).

Recent changes to the Internal Revenue Code repeal the alimony deduction for support payments

11 See Fam. Code § 4360; In re Marriage of O’Connell (1992) 8 Cal. App. 4th 565, 572, 10 Cal. Rptr. 2d 334; cf. Fam. Code § 4337 (support
generally terminates on death of supporting spouse).

22 Fam. Code § 4360(a).

33 Fam. Code § 4360(b).

44 In re Marriage of Stimel (1996) 49 Cal. App. 4th 991, 994–996, 57 Cal. Rptr. 2d 18 (wife’s motion for order directing her former husband
to apply for life insurance naming her as beneficiary and stipulating she would pay all insurance premiums was not motion to modify spousal
support); see Fam. Code § 2010.
 Page 165 of 171
§ 51.115 Provisions for Support After Death of Supporting Party

made pursuant to an order or separation agreement executed after December 31, 2018. 5 As a
result, the cost of insurance premiums paid under such an order will not be tax deductible,
regardless of whether it is characterized as spousal support. However, spousal support payments
made pursuant to an order or separation agreement executed before January 1, 2019, will continue
to be eligible for alimony tax treatment.6

[b] Nature of Order

An order under Family Code Section 4360 does not effect a property division, but rather is merely a form of
spousal support.7 The propriety of such an order is placed before the court if support is properly placed at
issue by the pleadings. It is not necessary to specifically request an order under Family Code Section 4360.8
The order is not a form of security for support to be paid during the obligor’s lifetime. 9
There are differing viewpoints on the effect of the order on the obligor’s support obligation. It has been said
that such a provision does not extend the obligor’s support obligation beyond the obligor’s death. Death
still ends the obligor’s support obligation, but creates a new obligation in the insurer, annuity provider, or
trust to the supported spouse.1010 On the other hand, an unexecuted provision has been found to be an
agreement of the parties to extend support beyond the death of the payor, so that the provision was
enforceable against the estate of the supporting spouse.1111

[c] Life Insurance

An order to maintain life insurance carries with it an obligation on the insured not to do anything that would
interfere with the right of the beneficiary to receive the benefits to be paid under the policy. Conduct of the
insured that results in the cancellation of the policy or the cancellation of the insurer’s duty to pay full
benefits under the policy may be remedied by imposing a constructive trust on the estate of the insured. 1212
One court has stated that the court may require an insured spouse to designate their support obligees as co-
beneficiaries of an existing policy, without notice to the current beneficiary, even if the current beneficiary
is a subsequent spouse and the premiums are being paid with community property from the second
marriage.1313 In the view of this court, a change in life insurance beneficiaries to fulfill an existing support
5
6

77 In re Marriage of Ziegler (1989) 207 Cal. App. 3d 788, 791, 255 Cal. Rptr. 100.

88 See In re Marriage of O’Connell (1992) 8 Cal. App. 4th 565, 573–576, 10 Cal. Rptr. 2d 334 (court could consider propriety of life
insurance order on obligor’s motion to decrease support due to disability).

99 In re Marriage of O’Connell (1992) 8 Cal. App. 4th 565, 572, 10 Cal. Rptr. 2d 334.

1010 See In re Marriage of O’Connell (1992) 8 Cal. App. 4th 565, 572, 10 Cal. Rptr. 2d 334.

1111 See Lucas v. Elliot (1992) 3 Cal. App. 4th 888, 893–894, 4 Cal. Rptr. 2d 746 ; see also Tintocalis v. Tintocalis (1993) 20 Cal. App. 4th
1590, 1594–1596, 25 Cal. Rptr. 2d 655, 657–659.

1212 Tintocalis v. Tintocalis (1993) 20 Cal. App. 4th 1590, 1594–1596, 25 Cal. Rptr. 2d 655, 657–659 (insured’s suicide cancelled insurer’s
duty to pay death benefit; constructive trust imposed on insured’s estate for amount of death benefit).

1313 In re Marriage of O’Connell (1992) 8 Cal. App. 4th 565, 576–581, 10 Cal. Rptr. 2d 334. The language is dicta to the extent that it
addresses community property interests because the appellate court noted that there was no factual finding as to the source of payment of the
 Page 166 of 171
§ 51.115 Provisions for Support After Death of Supporting Party

obligation is not a gift of community property that may be set aside by the second spouse because the
community property of the subsequent marriage is liable for an obligor’s support obligations from a prior
relationship.1414 Apparently, the court is of the view that the redesignation would not defeat the subsequent
spouse’s community property interest in the proceeds of insurance, although that point was not at issue in
the case and the court’s treatment of it is unclear.1515

[2] Form—Purchase of Annuity

Purchase of Annuity
[As additional spousal support,] respondent shall purchase at [his/her] sole cost, within ____________ days of
the date of this judgment, an annuity contract for the benefit of petitioner. The annuity shall provide for
payments to petitioner in a minimum amount of $ ______________________ per month, beginning
______________________ [date]. ______________________ [specify any condition terminating obligation,
e.g., This obligation shall be terminated should petitioner die or remarry during respondent’s lifetime].

[3] Form—Maintenance of Life Insurance

Maintenance of Life Insurance

[As additional spousal support,] respondent shall purchase at [his/her] sole cost, within
______________________ days of the date of this judgment, a term life insurance policy on his life, naming
petitioner as sole primary beneficiary, and providing for a death benefit of not less than $
______________________. Respondent shall maintain this insurance in effect for a minimum term of
______________________ years from the date of purchase. ______________________ [Specify any condition
terminating obligation, e.g., This obligation shall be terminated should petitioner die or remarry during
respondent’s lifetime.]

[4] Form—Establishment of Trust

Establishment of Trust
[As additional spousal support,] respondent shall establish an inter vivos trust within
______________________ days of the date of this judgment, naming petitioner as sole primary beneficiary and
______________________ (name) or an institutional fiduciary] as trustee. This trust shall be initially funded
with property worth not less than $ ______________________. The trust instrument shall provide for
distributions of principal and income to petitioner for her support to commence on the death of respondent, or
earlier. ______________________ [Specify any condition terminating obligation, e.g., This obligation shall be
terminated should Petitioner die or remarry during Respondent’s lifetime].

premiums.

1414 In re Marriage of O’Connell (1992) 8 Cal. App. 4th 565, 580, 10 Cal. Rptr. 2d 334; see § 51.33[3].

1515 See In re Marriage of O’Connell (1992) 8 Cal. App. 4th 565, 577–578, 581 n.13, 10 Cal. Rptr. 2d 334 . The court noted the rule that a
spouse may set aside an unauthorized gift of insurance proceeds to the extent of their community property interest (p. 578). The court’s dicta
denying the spouse’s right to set aside an unauthorized change of beneficiaries was based on the view that the change was not a gift because it
was in fulfillment of the prior support obligation.
 Page 167 of 171
§ 51.115 Provisions for Support After Death of Supporting Party

[5] Form—Supporting Spouse Cooperates in Purchase of Life Insurance by Other Spouse

Supporting Spouse Cooperates in Purchase of Life Insurance by Other Spouse

Petitioner may purchase and maintain a life insurance policy on respondent’s life, at petitioner’s own expense,
[with a face value of $______________________]. Respondent shall cooperate with petitioner’s acquisition of
life insurance on [his/her] life by taking all reasonable steps to facilitate such acquisition, including, but not
limited to, promptly completing an insurance application and submitting to a medical examination.
California Family Law Prac & Proc 2d ed.
Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document
 2 California Family Law Prac & Proc 2d ed. § 51.116

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART D. FORMS >
Subpart 2. Spousal Support Orders

§ 51.116 Reservation of Jurisdiction Only

[1] Comment
The form in [2], below, is a provision that retains jurisdiction to order spousal support in the future even though
no amount is currently being ordered. The lack of any support indicates that the court has determined, or the
parties have agreed, that neither is currently entitled to support under the standards of Family Code Section
4320.

The rule has been that if no spousal support is ordered, jurisdiction is lost unless retained expressly in the order
or by agreement.1 However, it appears that in a marriage of long duration under Family Code Section 4336,
jurisdiction is retained indefinitely without the need for any express language in the judgment. But because of
some uncertainty over the construction of this statute, it is recommended that express language reserving
jurisdiction be included regardless of the length of the marriage, if the determination of the court or the
agreement of the parties is that jurisdiction should be reserved. For further discussion, see § 51.51[1][a].
Traditionally, a token amount, such as $1.00 per year, was ordered for the purpose of reserving jurisdiction if
the court felt that one party might be in need of support at a later date. 2 However, jurisdiction may be retained
by a simple recitation in the order without making a token award. 3 Such a recitation has the advantage of
clarifying that jurisdiction is being retained to order support to either party in the future, not just to the party to
whom the dollar is awarded.

It has been held to be an abuse of discretion to retain jurisdiction to order spousal support to a spouse in a short-
term marriage who is in good health and permanently employed at a self-supporting income level. 4 In light of
Family Code Section 4336, it is undoubtedly not an abuse of discretion to retain jurisdiction indefinitely in a
long-term marriage, even though neither party is currently in need of support. In fact, retention of jurisdiction
appears to be required by the statute unless the parties agree that it should not be retained (see § 51.53[2]).

■ PRACTICE TIP:

11 See Cochran v. Cochran (1970) 13 Cal. App. 3d 339, 344, 91 Cal. Rptr. 630.

22 See In re Marriage of Forcum (1983) 145 Cal. App. 3d 599, 605, 193 Cal. Rptr. 596 ; In re Marriage of Boseman (1973) 31 Cal. App. 3d
372, 378, 107 Cal. Rptr. 232.

33 See, e.g., In re Marriage of Liss (1992) 10 Cal. App. 4th 1426, 1428, 13 Cal. Rptr. 2d 397 ; In re Marriage of Wells (1988) 206 Cal. App.
3d 1434, 1436, 254 Cal. Rptr. 185.

44 See In re Marriage of Hebbring (1989) 207 Cal. App. 3d 1260, 1266–1267, 255 Cal. Rptr. 488.
 Page 169 of 171
§ 51.116 Reservation of Jurisdiction Only

It cannot be over-emphasized that clear and explicit language stating the parties’ intent regarding
reservation or termination of jurisdiction must be used in any order or judgment. Commentary by
Kathryn Kirkland

[2] Form

Reservation of Jurisdiction Only

This court retains jurisdiction over the issue of spousal support for each party until the party’s death,
remarriage, or further order of this court.
California Family Law Prac & Proc 2d ed.
Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document
 2 California Family Law Prac & Proc 2d ed. §§ 51.117–51.199

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART D. FORMS >
Subpart 2. Spousal Support Orders

§§ 51.117– 51.199 [Reserved]

California Family Law Prac & Proc 2d ed.

Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document
 2 California Family Law Prac & Proc 2d ed. § 51.200

California Family Law Prac & Proc 2nd ed. > CHAPTER 51 Spousal Support Orders > PART E.
REFERENCES

§ 51.200 Legal Texts

Denner, Rothschild and Johnson, CALIFORNIA FAMILY LAW LITIGATION GUIDE (Matthew Bender)
Unit 33, Trial of Permanent Spousal Support.
CALIFORNIA FORMS OF PLEADING AND PRACTICE (Matthew Bender).
Ch. 220, Dissolution of Marriage and Related Proceedings, pt. I.
California Family Law Prac & Proc 2d ed.
Copyright 2024, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

End of Document