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Spousal Support Does Not Last Forever

Jan. 23, 2020

There is a common misconception that it is “the norm” to receive spousal support for “life.” This belief likely stems from a misunderstanding of the common language used when defining spousal support.

First, it is important to understand the Family Code relating to the duration of support. Section 4320(k) provides: “The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a ‘reasonable period of time’ for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court's discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties . . . .”

The relevant portion of Family Code section 4336 provides:

“(a) Except on 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 the legal separation of the parties where the marriage is of long duration.

(b) For the purpose of retaining jurisdiction, there is a presumption affecting the burden of producing evidence that a marriage of 10 years or more, from the date of marriage to the date of separation, is a marriage of long duration. However, the court may consider periods of separation during the marriage in determining whether the marriage is in fact of a long duration. Nothing in this subdivision precludes a court from determining that a marriage of fewer than 10 years is a marriage of long duration.

(c) Nothing in this section limits the court’s discretion to terminate spousal support in later proceedings on a showing of changed circumstances. . . .”

In other words, California’s public policy promotes a supported spouse becoming self-supporting in a reasonable time. When a marriage is not of “long duration,” a reasonable period of time is “generally” half the length of the marriage. Family Code section 4336 states that marriages greater than 10 years in duration are “presumed” to be of a long duration.

So initially, we know that in marriages of less than ten years, spousal support will generally end at half the length of the marriage because this is “generally” a reasonable time for the supported spouse to become self-supporting.

In marriages of long duration, there is no predetermined time when the supported spouse will be deemed to be self-supporting. However, California’s public policy favoring the supported spouse becoming self-supporting still applies. The Legislature left determining what is a reasonable time to the discretion of the trial court. Significantly, Section 4336(c) specifically allows the trial court to terminate spousal support based on “changed circumstances.”

When combined with the public policy, it is important to recognize the goal of having a supported spouse pay for him or herself and not to rely indefinitely on the supporting spouse.

The issue is further confused by the language used in most judgments regarding support. A typical support order will include language similar in substance to the following:

“Petitioner’s obligation to make spousal support payments will terminate on further order of the court, Respondent’s remarriage, or the death of either party, whichever occurs first.”

The supported spouse in this example is the Respondent. The Respondent will claim support is ordered for life based on the language “death of either party.” However, this is not the operative language. The significant term is “further order of the court.” As we read above, the court has jurisdiction to terminate spousal support based on a showing of “changed circumstances.”

It might be helpful to understand why the death language is included. The obvious reason is to clarify that the estate of a decedent is not ordered to pay support and to clarify that a supporting spouse need not pay support to the estate of a supported spouse.

The more pertinent reason for this language has to do with IRS regulations that used to govern the deductibility of spousal support for income tax purposes. Prior to 2019, the IRS allowed for certain spousal support payments to be deductible to the payor and includable to the recipient for tax purposes. Significantly, to apply, Section 71(b)(1)(D) required that “there is no liability to make any such payment for any period after the death of the payee spouse and there is no liability to make any payment (in cash or property) as a substitute for such payments after the death of the payee spouse.” The language “terminates on the death of either party” was actually intended to conform to the order with the requirements of the IRS for a deductible order.

While the IRS no longer allows for deductible spousal support orders, the language will likely remain as a clarifying provision, but should not be interpreted as defining the duration of spousal support as “for life.”