Modification of Spousal Support in California: A Case Analysis

The purpose of this post is to help you understand what type of analysis a court uses in determining whether a modification of spousal support is warranted.  Let’s use an example.

I’m using the following appeals case of (In re Marriage of Shaughnessy (2006) 139 Cal. App. 4th 1225) as the example of how the courts apply law to a factual situation.  This case is a good example of spousal support because the couple has no children.  Therefore, you get a cleaner look on how spousal support law works. 

Preserving the Family Home Even if Your Spouse Owns it Outright

California is a community property state.  So property obtained through wages and efforts of each spouse during the marriage are community property and generally divided in half at dissolution.  Separate property is property is not included in the category of community property.  Separate property is property held by a spouse before marriage, or during the marriage by gift, bequest, or devise.   Separate property usually becomes that of its owner after a dissolution action.

   

If you are in a hotly contested divorce or dissolution action, there may be a way to preserve the family home even if the family home is a separate property asset of your spouse.  Preserving the family home when it’s your spouse’s separate property is possible only if you have children and you have primary physical custody.  Under California Family Code § 3800 et seq., it is fairly common for Judge to enter a deferred sale of home order for a home that has both a community property and a separate property interest.  For example, one spouse has a house that has not been paid off yet before getting married and the other spouse helps pay off the mortgage with community property assets.  So this house is separate property with a community property interest.  If this couple has children, and then decides to get a divorce, the deferred sale of home order helps the spouse with primary physical custody to keep the children in the family home.  The policy of this law make some sense because you want to keep the children’s living situation as stable as possible.  In this situation, both spouses have an interest in the family home.

Annulment vs. Divorce

In this post I’m not going to discuss the inner workings of how a Divorce in California works, unless it is helpful to understanding the differences between a divorce or a dissolution action and an Annulment or Nullity action.  I am going to discuss why an annulment would be a good option in certain situations, but may not be possible most of the time.  This post is to give you an overall picture of the grounds for an annulment and not to go into specific facts required under each category.

Family Law and Divorce Do it Yourself Series Part I: How to Modify an Existing Child Support Order in California?

This post is to help you file or just simply understand what your lawyer is doing when he or she agrees to assist you in modifying your existing child support order. 

No Common Law Marriages in California, EXCEPT…

No matter how much anyone tries to convince you that common law marriages exist in California do not believe them.  There simply is no common law marriage in California or any marriage-like rights that are recognized under the California Family Code.  This means that there is no spousal support arising out of a marriage-like relationship, nor are there any property rights created.  So if you want to break up with the live-in boyfriend or live-in girlfriend and you do not have any children, they will not have rights under the California Family Code to assert against you for spousal support or property. 

Determining Custody: Child's Best Interest

In determining child custody where there hasn't been a permanent custody order by the court, the court will analyze the following factors in deciding what custody arrangement is in the best interests of the child (California Family Code Section 3011:

Long-Term Marriages in California

Under California law, ten-year plus marriages are presumed to be “lengthy” marriages or marriages of long duration for the purposes of spousal support.  By default, according to California family Code 4336, a marriage 10 years or more the court will retain jurisdiction over the spousal support issue unless you agree to something else your marital settlement agreement.