Understanding Permanent Spousal Support Duration

Now, this week we move on to the discussion regarding permanent spousal support. As a reminder, last week we discussed a simplistic approach to temporary spousal support. There, the focus was which spouse had the ability to pay and which spouse had the need for money. Generally, it really is that simple. And remember, a spouse most likely will seek temporary support before the divorce is final. Hence, the word temporary.

However, permanent spousal support is a much different approach. First, a spouse obtains permanent support when the divorce is final. This is when the court enters a judgment. Second, the spouse seeking permanent spousal support must prove 14 different things to the court outlined in a California law. Just like there are criminal laws and driving laws to follow, California has an entire body of law for family law—called the California Family Code. Thus, the rules to follow when seeking permanent spousal support can be found in California Family Code Section 4320. Such factors in Section 4320 include how much each spouse does earn and can earn, the assets each spouse owns, and the length of the marriage.

But, what is most important to know here is that the court will look at all of this through its special lens—called the marital standard of living. Thus, if feasible, the supported spouse will generally obtain support to the extent so he/she can continue to live at the standard the spouses maintained during the marriage—which could be middle class, upper middle, or upper class. This martial standard of living concept is often met with resistance by the supporting spouse. And such phrases are often blurted out when a supporting spouse is confronted with paying support: “What do you mean I have to now rent an apartment so my ex-spouse, who does not work, can still live in the 5 bedroom house?” Note, though, that there is a caveat here.

And such caveat is as follows: The word permanent really is a misconception. Thus, to answer the title question: “No, you may not have to pay spousal support forever. So, to keep this simple, the length of the marriage often is a significant factor the court will consider. As such, if you were married for fewer than 10 years, it is likely that the court will set permanent support for half the length of the marriage. However, where the marriage is more than 10 years, the court will exercise its discretion, especially weighing the 14 factors mentioned above in that very important law—California Family Code Section 4320.

So, although spousal support may not be forever, many of you may be asking the follow-up question: Once the court determines the length of permanent spousal support, does that mean I must pay for that entire time? The answer: It depends. To the delight of some, and the dismay of others, permanent spousal support can be challenged after the divorce is final. Such a challenge is called either a modification or termination. A spouse may seek to modify or terminate support possibly three years, two, years, or even one year after the divorce is final. But, note that this is not an easy hurdle to overcome to make this change. The ex-spouse seeking this change must prove to the court that there has been a change in circumstances that warrant this modification or termination. Note that the spouse seeking this change cannot just re-argue again what he/she argued at court the first time. The spouse seeking this change must show certain things—such as being terminated from his/her job or resigning from a job for retirement. But, be careful not to get any bright ideas like earning less on purpose to minimize support or to obtain more support. It is likely that the court will see through such a sham.

Please know that the above was kept in the simplest form to help you understand a very complex and, as you know, highly contested issue. As many areas of law, the complexity is understood and handled well by an attorney. Thus, it’s helpful to know that an experienced family law attorney is a phone call, or email, away to help provide guidance before the marriage, at the difficult time of dissolving the marriage, and during post-judgment issues.

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