Does spousal support increase just because child support has ended? The information we are writing in this article is correct as of the date of its publication. This is an area of law that may be going through further changes so do not rely on this article as being up to date just in case the law has recently changed.
Let’s discuss a scenario where, after the final divorce judgment, child support terminates because the children have reached the age of 18 (or graduated high school if they are over 18) and the parent who received child support and alimony is concerned because, without the child support, that parent won’t be able to support him or herself.
Does a termination of child support entitle the supported parent to increased alimony?
Let’s find out.
Child support and spousal support serve a difference purpose in California
Child support and alimony (what we often call “spousal support”) serve different purposes and are generally awarded separately to a supported spouse in a divorce case.
To use a hypothetical scenario, let’s assume a father pays a mother $2,500.00 in child support for two children and separately pays her $4,000.00 per month in alimony. The child support is for the children and to care for them. The $4,000.00 is for the maintenance of the marital standard of living…or is it?
Regardless of how that $4,000.00 was determined, the reality is the alimony number was likely lower than it could have been if there was no child support. In other words, if the husband in our hypothetical never had child support to pay, chances are pretty good that he would have been paying more than $4,000.00 per month in spousal support. That is because child support comes first and alimony is based on what there is left.
Does the mother in our hypothetical have rights?
Can your ex-spouse go back and increase spousal support because of a termination of child support?
California Family Code 4326 states the following:
(a) Except as provided in subdivision (d), in a proceeding in which a spousal support order exists or in which the court has retained jurisdiction over a spousal support order, if a companion child support order is in effect, the termination of child support pursuant to subdivision (a) of Section 3901 constitutes a change of circumstances that may be the basis for a request by either party for modification of spousal support.
(b) A motion to modify spousal support based on the change of circumstances described in subdivision (a) shall be filed by either party no later than six months from the date the child support order terminates.
(c) If a motion to modify a spousal support order pursuant to subdivision (a) is filed, either party may request the appointment of a vocational training counselor pursuant to Section 4331.
(d) Notwithstanding subdivision (a), termination of the child support order does not constitute a change of circumstances under subdivision (a) in any of the following circumstances:
(1) The child and spousal support orders are the result of a marital settlement agreement or judgment and the marital settlement agreement or judgment contains a provision regarding what is to occur when the child support order terminates.
(2) The child and spousal support orders are the result of a marital settlement agreement or judgment, which
provides that the spousal support order is nonmodifiable or that spousal support is waived and the court’s jurisdiction over spousal support has been terminated.
(3) The court’s jurisdiction over spousal support was previously terminated.
(e) Notwithstanding subdivision (b), a party whose six-month deadline to file expired between January 1, 2014, and September 30, 2014, may file a motion pursuant to this section until December 31, 2014. [Added by Stats. 2014, Ch. 202, Sec. 1. (AB 414) Effective August 15, 2014]
Has your child support order terminated? Are you considering filing a spousal support modification request or are you on the other side of the case and facing a modification request? No matter what your situation, our experienced family law attorneys can give you an affordable strategy session and determine the best course of action for you and your case.