How to reduce spousal support in a California divorce is a common question, especially after the divorce judgment. But spousal support reductions aren't limited to post judgment requests. They come in different forms and for different reasons.
In this article, our divorce attorneys will look at the most common spousal support reductions. For a detailed look at California alimony law and procedure, visit our guides on this subject. They are a terrific road map to help you understand this complex issue. If you are more of a visual person, check out this chart we created on reducing alimony in California.
Downward change in income as a basis to reduce spousal support in California
The most common reason for a spousal support reduction in a California is, not coincidentally, a reduction in the support payer's income.
Whether a modification of support is sought during a divorce or thereafter, a payer's inability to sustain the current ordered support number is a valid basis for a support reduction. Typically, the support reduction has to be significant enough for the Court to make the order. In temporary support modifications (pre-judgment), a 10% reduction (reducing support from $1,000 to $900 as an example) will be well received by the Court. This is not a hard and fast rule and can vary from one family law judge to another.
In post judgment divorces, the family court cannot rely on a computer program to calculate support so a more complex evaluation is required. Our attorneys evaluate the current order, the marital lifestyle and then decide whether a support order is merited. The most common mistake we see by those who seek to reduce their spousal support in California is to rush into the modification request. There are no shortcuts if you want to win. Careful evaluation of the support modification and preparation for your ex-spouse's arguments are key.
Upward change in income as a basis to reduce spousal support in California
We have talked about the payer's income reduction. Now, let's talk about the supported spouse's income increase. For those who seek to reduce their support in a divorce, the hardest part of this process is finding out how much the other spouse's income has increased.
In temporary support situations, if the payer has learned of a potential income increase, the easiest way to handle it is to informally request the information and, if your spouse refuses, subpoena your spouse's new employer or source of new income.
In a post judgment situation, a request to complete an income and expense declaration can be served to give the ex-spouse 30 days to complete and serve it. Unfortunately, a subpoena is not an option if the divorce is no longer pending and there are no pending post judgment proceedings. If your ex-spouse refuses to provide the income and expense declaration, showing the court that a reasonable and good faith attempt was made to acquire the information is important, just in case the income increase information turns out to be incorrect.
Our attorneys have rarely had trouble to acquire this information. In situations where we represented the payer and he or she wishes to reduce his or spousal support, we have more often than not acquired the ex spouse's income information.
Cohabitation of the supported spouse with a non marital partner to reduce spousal support in California
Family Code 4323 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."
In short, if your ex-spouse lives with a non marital partner, there is a presumption that he or she has a reduced need for support. Do not mistake the word presumption with certainty. A presumption means the family law judge will "presume" there is a reduced need but your ex-spouse still receives an opportunity to show there is not a reduced need.
In the first version of this article, I had written, "one situation that we have not yet run across but we expect will occur is one where the ex-spouse lives with a member of the same-sex, in a romantic relationship. It will be interesting to see if the family court will take the statute literally and therefore not apply it or if the court would apply the public policy of the statute regarding reduced need." That is because the old version of the statute referred to a member of the "opposite sex" to trigger the presumption and not a "non marital partner." Looks like the legislature caught up.
"Do I need a divorce attorney to reduce spousal support in my California divorce"?
Most of the time, the answer is yes. A reduction in spousal support in a California divorce can sometimes be harder and more complicated than getting the initial support order. That is because California law has certain conditions for modifications, especially post judgment, that a self represented person will not know nor understand. Our experienced attorneys can help you seek and obtain a downward modification of your spousal support order. If you face a spousal support modification request and wish to oppose it, you owe it to yourself to contact us. We will tell you if the support modification is justified and, if not, how to best oppose your spouse or ex-spouse's request.