How is Permanent Spousal Support (Alimony) Determined in Los Angeles?
Permanent spousal support (alimony) is quite different from temporary spousal support. It refers to support payments due to a spouse after a divorce judgment. Permanent spousal support tends to be lower than temporary spousal support. Disparity of income and marital standard of living, two primary considerations for determining temporary spousal support, are not determinative factors for determining permanent spousal support.
“4320 Factors” Determining the Amount of Permanent Spousal Support
California Family Code section 4320 lists many factors that the court must consider in deciding permanent spousal support. Some factors may be given great weight, while others receive very little weight.
(a) whether the earning capacity of each party is adequate to maintain the marital standard of living, considering: (1) the job market for the supported party’s skills, (2) the time and cost for the supported party to obtain the skills required for those skills, (3) the potential need for retraining or education to acquire other, more marketable skills or employment, and (4) the extent to which the supported party’s present and future earning capacity is diminished due to the party’s devotion of time to domestic duties (e.g. raising kids) during the marriage.
(b) extent to which the supported party contributed to the supporting party’s obtainment of an education, training, career, or license
(c) ability of the supporting spouse to pay alimony, considering earning capacity, all income, assets, and standard of living
(d) needs of each party based on the marital standard of living
(e) debts and assets of each party, including the value of each party’s separate property
(f) duration of the marriage
(g) ability of supported party to be gainfully employed without compromising the interests of children in the supported party’s custody
(h) age and health of the parties
(i) history of domestic violence
(j) tax consequences to either party
(k) balance of hardships to each party
The court must consider all “4320 factors” listed above. The court has extremely broad discretion in determining proper permanent spousal support. Resist the temptation to equate temporary spousal support to permanent spousal support; they are totally different. The court may not use temporary spousal support as a starting point or guideline to determine permanent spousal support, rather the court must make a “ground up” determination in consideration of all 4320 factors. IRMO Schulze (Cal. Ct. App. 1997) 60 Cal.App.4th 519, 526-27. A permanent spousal support award that is equal or virtually equal to a preceding temporary spousal support award is inherently suspect.
Can Permanent Spousal Support be a Lump Sum Payment?
Yes, and if alimony is paid in a lump sum, the amount can not be modified. Similarly, if payment is made by property transfer, it cannot be modified.
Can Permanent Spousal Support be Modified?
As discussed immediately above, permanent spousal support (alimony) cannot be modified when it is paid by property transfer or lump sum. However, when it is in the form of periodic payments, permanent spousal support is modifiable upon showing a material change in circumstances, unless the parties agreed that alimony cannot be modified. Zarubin v. Miotke (Cal. Ct. App. 2019) 35 Cal.App.5th 849, 862. Courts are highly reluctant to modify an alimony order where the parties agree it is non-modifiable, even if circumstances materially change and fairness commands modification. Id. at 862-63.
Another nuance is that a court’s orders may state an end date for payment of permanent spousal support while reserving jurisdiction to extend the end date. Bain v. Superior Court (Cal. Ct. App. 1974) 36 Cal.App.3d 804, 807. A court may abstain from reserving jurisdiction when evidence shows that both spouses are working or have sufficient assets to support themselves. Temporary spousal support, while the divorce is pending, is modifiable.
Divorcing parties may decide that they are willing to revisit alimony if circumstances materially change. Alternatively, they may choose to make their agreement regarding alimony non-modifiable, regardless of how circumstances may change in the future. This is a personal decision.
Termination of Permanent Spousal Support in Los Angeles
If either spouse dies or the supported spouse remarries, permanent spousal support automatically terminates. IRMO Campbell (Cal. Ct. App. 2006) 136 Cal.App.4th 502, 507; Cal. Fam Code § 4337. A termination date can also be determined by the court or by agreement between the parties.
Domestic violence perpetrated by the supported party may also cause spousal support to terminate. Freitas v. Freitas (Cal. Ct. App. 2012) 209 Cal.App.4th 1059, 1073 (temporary spousal support terminated due to Kevin’s commission of domestic violence); IRMO Brewster & Clevenger (Cal. Ct. App. 2020) 45 Cal.App.5th 481, 496-97 (permanent spousal support denied based on Mary Kay’s act of domestic violence, her placement of a ball python and rats in Chris’ bedroom).
Proving that a spouse is actually self-supporting or should be self-supporting may also result in termination of spousal support. This can be accomplished in a variety of ways. For example, the court may order a spouse to submit to an examination by a vocational expert who will report the spouse’s earning capacity to the court.
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