Will My Wife Really Get Spousal Support From Me For Life?
Potential for lifetime spousal support is scary. But are you worrying about something you do not understand?
Will my wife get spousal support from me for life? Here is the truth.
In a long-term marriage, spousal support for life is every high income earner's fear. "Will my wife get spousal support from me for life" is usually the first question a man will ask in a California divorce.
But is that concern about lifetime spousal support realistic? Is that what California law requires on long-term marriages?
This article is not legal advice and we are only writing about California law. For additional reading and a terrific guide on spousal support laws in California, check out our dedicated page to the subject.
In this article, we will assume the marriage is 10 years or longer. We won't discuss marriages of shorter duration. Although this article is written from the perspective of the husband, it applies equally to a wife who is the higher income earner in a long-term marriage.
Will my wife get spousal support from me for life just because we were married 10 or more years?
California's 10 year mark is well-known to most people. But some people have it wrong. They think that just because a marriage hits the 10 year mark, it automatically means the court will order spousal support for life. That is not what the law says. Here is Family Code 4336:
(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 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 long duration. Nothing in this subdivision precludes a court from determining that a marriage of less 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.
- Family Code 4336
When you read it carefully, it doesn’t state that a marriage of 10 years or more automatically results in lifetime spousal support. It states the court retains jurisdiction (which means power to make orders) in such marriages unless there is a written agreement or a court order that terminate support. You see? It is not automatic. Notice section (c) specifically allow termination of spousal support in a later proceeding.
So the answer to the question is no – just because you are married 10 or more years does not automatically mean your wife will get spousal support for life.
Also notice that just because a marriage is technically less than 10 years does not mean it will never be considered a long-term marriage. There is discretion there and the specific facts of the particular case are most important.
Will my wife get spousal support from me for life because I work and she does not?
Whether you are self-employed and going through a divorce or a W2 employee, how much income you earn compared to your wife is a factor in spousal support.
If your wife has been a homemaker or a stay at home mom, a reasonable time has passed since the divorce and she has failed to make reasonable efforts to provide for her own support, a spousal support modification request may be in order. You can ask the Family Court to impute income to your wife and/or request an order for a vocational evaluation.
Will my wife get spousal support for me for life because she refuses to work?
Does your wife have the ability, opportunity and capacity to work but refuses to do so? Then we have to look at a potential vocational evaluation request and potentially imputing income to her. This isn’t just for situations where your wife is not working but also those where she is underemployed.
Will my wife get spousal support from me for life even though my income has been reduced?
Income reduction is a proper grounds for a reduction of spousal support. The key here is moving at the right time. Whether to move immediately for a downward modification or wait a short time to see if your income rebounds is all about cost versus benefit.
Will my wife get spousal support from me for life even though she can support herself?
Your current wife or ex-wife should not get spousal support from you if she can support herself. The marital standard of living is important of course but the further away you get from the date of the divorce, the less important the standard of living may become. This is a complex area of spousal support law.
Family Code 4322 states: “In an original or modification proceeding, where there are no children, and a party has or acquires a separate estate, including income from employment, sufficient for the party’s proper support, no support shall be ordered or continued against the other party.”
Supporting herself isn’t just about income. It’s also about assets. Family Code 4321(a) states:
In a judgment of dissolution of marriage or legal separation of the parties, the court may deny support to a party out of the separate property of the other party in any of the following circumstances…:
…(a) The party has separate property, or is earning the party’s own livelihood, or there is community property or quasi-community property sufficient to give the party proper support.
- Family Code 4321(a)
Another consideration is whether a Gavron Warning should be given to your spouse. We have written a terrific article (if we do say so ourselves) on this subject. Check it out.
Will my wife get spousal support from me for life even though she is in a new relationship?
If your ex-wife (or current wife with whom you are going through a divorce) is dating or in a relationship, that doesn’t automatically mean your spousal support to her terminates. But if the new boyfriend or fiancé is reducing your wife or ex-wife’s need for spousal support because he pays for her expenses, that may be proper grounds to seek a reduction or elimination of spousal support.
If your wife or ex-wife is cohabitating with her boyfriend, fiance or other non marital partner, then pay close attention to Family Code 4323. It states:
(a) (1) Except as otherwise agreed to by the parties in writing, there is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabiting with a nonmarital partner. Upon a determination that circumstances have changed, the court may modify or terminate the spousal support as provided for in Chapter 6 (commencing with Section 3650) of Part 1.
(2) Holding oneself out to be the spouse of the person with whom one is cohabiting is not necessary to constitute cohabitation as the term is used in this subdivision.
(b) The income of a supporting spouse’s subsequent spouse or nonmarital partner shall not be considered when determining or modifying spousal support.
(c) Nothing in this section precludes later modification or termination of spousal support on proof of change of circumstances.
- Family Code 4323
Will my wife get spousal support from me for life even though I have been supporting her for a fair amount of time since the divorce?
This is another complex area of family law. Once again, the issues typically come down to marital standard of living, how much of a factor it really is given the time that has passed since the divorce, your ex-wife's need for support, your ability to pay, what efforts your ex-wife has made to become self-supporting, and of course how long you have been providing support.
These are some of the factors. The passage of time, by itself, is usually not enough to get a spousal support modification. But a change of circumstance sufficient by law in the above factors and others may be enough to file the request to reduce or terminate spousal support.
Will my wife get spousal support from me for life even though I have full custody of the children and support them?
You as a father have custody of the children, you are supporting them, and your wife or ex-wife still wants spousal support. Seems unfair right? Family Code 4321(b) states:
In a judgment of dissolution of marriage or legal separation of the parties, the court may deny support to a party out of the separate property of the other party in any of the following circumstances…:…(b) The custody of the children has been awarded to the other party, who is supporting them."
This is again not automatic. The word "may" means the Family Court doesn't have to make such an order. Do you think the particular facts of your case make a difference? If you said yes, you are right. The importance of the case's particular facts is true with pretty much all spousal support issues.
Will my wife get spousal support from me for life if she has committed domestic violence against me?
Family Code 4320 already makes domestic violence a factor in spousal support cases. Therefore, it should have a positive impact in your favor if the Family Court finds that you have been the victim of domestic violence.
But if your wife has also been convicted of it, then pay attention to Family Code 4324.5 and 4325.
Family Code 4324.5 states:
(a) In any proceeding for dissolution of marriage where there is a criminal conviction for a violent sexual felony or a domestic violence felony perpetrated by one spouse against the other spouse and the petition for dissolution is filed before five years following the conviction and any time served in custody, on probation, or on parole, the following shall apply:
(1) An award of spousal support to the convicted spouse from the injured spouse is prohibited.
(2) If economic circumstances warrant, the court shall order the attorney's fees and costs incurred by the parties to be paid from the community assets. The injured spouse shall not be required to pay any attorney's fees of the convicted spouse out of the injured spouse's separate property.
(3) At the request of the injured spouse, the date of separation, as defined in Section 70, shall be the date of the incident giving rise to the conviction, or earlier, if the court finds circumstances that justify an earlier date.
(4) The injured spouse shall be entitled to 100 percent of the community property interest in the retirement and pension benefits of the injured spouse.
(b) As used in this section, the following definitions apply:
(1) "Domestic violence felony" means a felony offense for an act of abuse, as described in Section 6203, perpetrated by one spouse against the other spouse.
(2) "Injured spouse" means the spouse who has been the subject of the violent sexual felony or domestic violence felony for which the other spouse was convicted.
(3) "Violent sexual felony" means those offenses described in paragraphs (3), (4), (5), (11), and (18) of subdivision (c) of Section 667.5 of the Penal Code.
(c) If a convicted spouse presents documented evidence of the convicted spouse's history as a victim of a violent sexual offense, as described in paragraphs (3), (4), (5), (11), and (18) of subdivision (c) of Section 667.5 of the Penal Code, or domestic violence, as defined in Section 6211, perpetrated by the other spouse, the court may determine, based on the facts of the particular case, that one or more of paragraphs (1) to (4), inclusive, of subdivision (a) do not apply.
(d) The changes made to this section by the bill that added this subdivision shall only apply to convictions that occur on or after January 1, 2019.
- Family Code 4324.5
Notice how severe the consequences are for a felony conviction. There are also separate code sections regarding attempted murder, etc. but that is beyond the scope of this article.
The rules are different for a misdemeanor conviction. Here is Family Code 4325.
(a) In a proceeding for dissolution of marriage where there is a criminal conviction for a domestic violence misdemeanor or a criminal conviction for a misdemeanor that results in a term of probation pursuant to Section 1203.097 of the Penal Code perpetrated by one spouse against the other spouse entered by the court within five years prior to the filing of the dissolution proceeding or during the course of the dissolution proceeding, there shall be a rebuttable presumption that the following shall apply:
(1) An award of spousal support to the convicted spouse from the injured spouse is prohibited.
(2) If economic circumstances warrant, the court shall order the attorney's fees and costs incurred by the parties to be paid from the community assets. The injured spouse shall not be required to pay any attorney's fees of the convicted spouse out of the injured spouse's separate property.
(3) At the request of the injured spouse, the date of separation, as defined in Section 70, shall be the date of the incident giving rise to the conviction, or earlier, if the court finds circumstances that justify an earlier date.
(b) The court may consider documented evidence of a convicted spouse's history as a victim of domestic violence, as defined in Section 6211, perpetrated by the other spouse, or any other factors the court deems just and equitable, as conditions for rebutting this presumption.
(c) The rebuttable presumption created in this section may be rebutted by a preponderance of the evidence.
(d) The court may determine, based on the facts of a particular case, that the injured spouse is entitled to up to 100 percent of the community property interest in the injured spouse's retirement and pension benefits. In determining whether and how to apportion the community property interest in the retirement and pension benefits of the injured spouse, the court shall consider all of the following factors:
(1) The misdemeanor domestic violence conviction, as well as documented evidence of other instances of domestic violence, as defined in Section 6211, between the parties or perpetrated by either party against either party's child, including, but not limited to, consideration of emotional distress resulting from domestic violence. The court shall also consider documented evidence of a convicted spouse's history as a victim of domestic violence, as defined in Section 6211, perpetrated by the other spouse.
(2) The duration of the marriage and when, based on documented evidence, incidents of domestic violence, as defined in Section 6211, occurred.
(3) The extent to which the convicted spouse's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the convicted spouse to devote time to domestic duties.
(4) The extent to which the convicted spouse contributed to the attainment of an education, training, a career position, or a license by the injured spouse.
(5) The balance of the hardships to each party.
(6) Any other factors the court determines are just and equitable.
(e) As used in this section, the following definitions apply:
(1) "Domestic violence misdemeanor" means a misdemeanor offense for an act of abuse, as described in paragraphs (1) to (3), inclusive, of subdivision (a) of Section 6203, perpetrated by one spouse against the other spouse.
(2) "Injured spouse" means the spouse who has been the subject of the domestic violence misdemeanor for which the other spouse was convicted.
(f) The changes made to this section by the bill that added this subdivision shall only apply to convictions that occur on or after January 1, 2019.
- Family Code 4325
Do not attempt to represent yourself on issues of spousal support
The issue of lifetime spousal support is a complex one. No article can advise you on your particular case. That is where hiring and the advice of an experienced California divorce attorney is important and helpful. If you are ready for an affordable and much needed case strategy session on your matter, please contact us.