Modification of Spousal Support

California policy is that spousal support orders should be made in a way that encourages the supported party to become self supporting within a reasonable period of time, and that the failure to make a good faith effort towards self support may be a factor for modifying or altogether terminating support. (See Family Code Section 4320(l) which states that one goal of spousal support is that the supported party shall become self-supporting within a reasonable period of time. And that except in the case of a marriage of long duration - see below- a “reasonable period of time” generally is one-half the length of the marriage).

The standard rule that modifications in support orders may only be granted if there has been a material change of circumstances since the last order was designed to prevent repeated attempts to modify support orders without justification, not to circumvent the goal that supported spouses become self-supporting within a reasonable period of time. (In re Marriage of Schaffer)

California Family Code Section 3651 states that an order for spousal support may not be modified or terminated to the extent that a written agreement, or an oral agreement entered into in open court between the parties, specifically provides that the spousal support is not subject to modification or termination. This statute specifies that a spousal support order may not be modified if the parties agree that the spousal support order may not be changed (either in writing or verbally, in court). Therefore, if there is no agreement amongst the parties that spousal support cannot be modified, it follows that spousal support can be modified.

Family Code Section 4336(a) states that except on the written agreement of the parties to the contrary or a court order terminating spousal support, the court retains jurisdiction indefinitely in a proceeding for dissolution of marriage or for legal separation of the parties where the marriage is of long duration. This means that if a marriage is considered to be of long duration (generally over 10 years in length), the court retains the jurisdiction to modify the support order.

Paragraph (c) of Section 4336 states that the court maintains discretion to terminate spousal support (in later proceedings) on a showing of changed circumstances.

Section 4335 of the Family Code limits a court's jurisdiction in spousal support actions as follows: an order for spousal support terminates at the end of the period provided in the order and shall not be extended unless the court retains jurisdiction in the order or under Section 4336. Cases decided under section 4335 clearly state that a court does not maintain jurisdiction to extend spousal support if the period for payment of spousal support has ended, unless the court can do so under section 4336 (or unless the court has reserved that right).

Divorce Basics

Many people who are contemplating divorce have basic questions regarding the process. Here is a very brief guide to help you answer some basic questions.

Can either party initiate and get a divorce?
Yes, either party is entitled to a divorce under California law.

What are valid reasons for getting a divorce in California?
California has a no-fault divorce policy. This means that either spouse can request and be granted a divorce based upon the grounds of "irreconcilable differences". "Irreconcilable differences" basically includes anything from "not getting along" to much more serious issues. Therefore, California allows divorce for any reason whatsoever.

Are there any other important requirements in order to get a divorce in California?
At least one party must be a resident of California for six continuous months, and a resident of the county in which the divorce proceeding is filed for three continuous months, prior to filing.

How long does it take to get a divorce in California?
California requires a time period of at least six months before a divorce can be finalized. This time frame can be longer if there are serious disagreements between the spouses.

Who will get custody of the children?
California uses the standard of “the best interests of the children” in order to determine who the primary caregiver will be. This often results in both parents having some custody of the minor children, and in some cases, joint custody. If custody and visitation becomes an issue between the parents, mediation is often employed in order to reach agreement between the parties. If no agreement is reached, the Court can impose the recommendation of a mediator, or decide upon a different solution based upon “the best interests of the children”. In some instances, litigation may be required in order to reach a solution to intractable differences.

What is the difference between physical custody and legal custody?
Just like the name implies, physical custody relates to who the children live with. Visitation is usually granted to the spouse who does not have physical custody; sometimes, both parents are granted joint physical custody. Legal custody deals with the responsibility of parents toward their children, and generally refers to a parent's right and responsibility to make decisions for the children (usually relating to their health, education, welfare, etc.).