The Dos and Don’ts of California Spousal Support Orders

Must a California divorce judge make express findings on each of the factors to be considered in ordering spousal support (the “4320 factors”)? Not necessarily as we learned in a recent California Court of Appeal case.

The case, In re Marriage of Tal Kahan and Scott Diamond, the trial court denied the husband’s request to modify spousal support, finding that husband’s income had not decreased and that wife had “made efforts” to become self-sufficient, among other findings. The trial court made no other express findings regarding the other factors listed in Family Code section 4320 including: (1) the marital standard of living, (2) contributions to the supporting spouse’s education, training or career, (2) the needs of each party, based on the marital standard of living, (4) the opportunity for employment without undue interference with the children’s interest, (5) the age and health of the parties, (6) the tax consequences, (7) the balance of hardships to the parties, and (8) any other factors deemed just and equitable by the court.

In 2014, husband was initially ordered to pay $4,326 per month in spousal support (as well as $3,674 per month in child support). However, in 2017, husband filed his first request to modify support, both spousal and child, because his income had declined and his oldest child had aged out of child support. In this initial request, the trial court found the reduction in child support to be a material change of circumstances for husband’s request for modification of spousal support, among other findings. In considering the 4320 factors, the trial court found husband’s income had declined, the oldest child had aged out of child support, and wife had made progress in her efforts to become self-supporting. The trial court reduced husband’s monthly spousal support by $526 to $3,800 per month.

In 2019, husband filed another request to modify spousal support. This time, husband relied on three “material changes.” First, his second child had aged out of child support. Second, husband’s income had decreased. Finally, wife had “failed to make good faith efforts toward becoming self-sufficient.” Husband wanted spousal support terminated or modified downward. However, the trial court disagreed with husband and denied his request to modify spousal support, finding (1) husband actually made more income, (2) husband showed no reason to change spousal support downward due to an aging-out child, and (3) wife had actually taken the steps suggested to become self-supporting.

On appeal, husband argued that the trial court abused its discretion by failing to consider each of the Family Code section 4320 factors when it denied his request for spousal support modification on the ground that the second child aging out of child support was insufficient by itself to warrant a reduction in spousal support.

In affirming the trial court, the appellate court noted that the trial court must consider each 4320 factor in deciding to modify a spousal support order, BUT the statute does not require the court to address EACH factor EXPRESSLY. The court went on to describe the broad discretion the trial court possesses in contemplating the 4320 factors and recognized that the trial court must apply each applicable factor in setting spousal support and that failure to do so is reversible error. However, there is no rule or precedent that the trial court “must expressly identify each factor and set forth in writing or the record how it has weighed each of them.”

In justifying its rationale, the appellate court noted several other statutes where the legislature does require express findings on each factor set forth. For example, dealing with the removal of a child from a parent in dependency proceedings, the court SHALL make a finding, either in writing or on the record, of the basis of the conditions listed for its determination. However, section 4320 is not one of those statutes. In a final blow to the husband’s argument, the court noted that the trial court DID expressly consider all applicable factors that the husband raised. However, the court did note it is better practice for trial courts to make express findings on each factor to provide a more complete record on appeal.

Lesson of the story, folks: raise as many of the 4320 factors as possible to a trial court to begin with and ask the court to make an express finding on each factors, even if not raised. Do not hope the appellate court will swoop in and save you by making the trial court do it for you.