When you work out your own divorce agreement, with or without a divorce mediator, you can make your own decision about the duration of spousal support. But what does the law say to guide judges when they have to decide on the duration of spousal support?
The following brief summary of the law comes from the California Judges Benchguide 201 dealing with child support and spousal support.
The purpose of temporary (pre-divorce) spousal support is to try to preserve the status quo. This is different from the purpose of permanent (post-divorce) spousal support, which is to provide financial assistance if appropriate.
The California Supreme Court has noted that the law has progressed from a rule entitling some women to lifelong support to a rule entitling either spouse to post-dissolution support for only as long as necessary to become self-supporting.
When determining permanent spousal support, the court must consider 14 factors, one of which is the goal that the supported spouse should become self-supporting in a reasonable period of time.
What is a reasonable period of time?
Except in a marriage of long duration (generally 10 years or longer), the Family Code says a “reasonable period of time” is one-half of the length of the marriage. The court may, however, order support for a greater or lesser length of time based on the parties’ circumstances.
In some cases, very short-term support is appropriate to financially assist one spouse in the transition to single status or until the proceeds of the property division can be received. At the other end of the spectrum, some supported spouses cannot generate enough income to provide for their reasonable living expenses. Then financial assistance until the remarriage of the supported spouse or the death of either of the spouses may be appropriate.
The court may order support for a specific duration that enables the supported spouse to complete an education that will improve their earning prospects. Or the duration may include a period of time in which the supported spouse refrains from employment in order to remain home to care for young children.
If the spouse seeking support has unreasonably delayed or refused to seek employment consistent with their ability, the court may consider this when deciding both the amount and duration of support.
Duration of spousal support for long-term marriages
A spousal support order for a fixed duration is common when the marriage was of short duration but generally is not appropriate if the marriage was of long duration (10 or more years). An order with no fixed duration is often appropriate when the supported spouse lacks the capacity to become self-sufficient.
A “Richmond” spousal support order says that support will terminate on a specified date unless, prior to that date, the supported spouse files a motion showing good cause to modify the amount and/or duration of the order. When the court can reasonably conclude that the supported spouse is capable of self-support, such an order is often appropriate, even for a long-term marriage. Richmond orders serve the policy goal (expressed in the Family Code) of enabling both spouses to develop their own lives, free from obligations to each other.
Another order type is a step-down order, which automatically decreases the support amount at specific intervals. These orders are meant to encourage self-support and are based on the likelihood that the supported spouse will have an increased ability to provide their own support at the time of each step down. These are more common with short-term marriages.
As noted above, the court will not usually set a fixed duration for spousal support for a long-term marriage. Therefore, if this is what you want to do, you can try to come to agreement on the terms of spousal spousal including duration, and submit this to the court. The court will normally approve what you submit.
Unless asked to do otherwise, a court will “retain jurisdiction” over spousal support awards in long-term marriages. This gives spouses the possibility of going back to court to request a change in spousal support amount or duration.
If you have a long-term marriage and want to have a fixed spousal support duration that is final and unmodifiable, this needs to be specified in your divorce agreement. You can also include that you do not want the court to retain jurisdiction to modify the duration of spousal support. When approved, neither spouse can later ask the court to modify the duration.