When Child Support Ends, Does Spousal Support Increase?/ Photo by Karolina Grabowska
Child Support v. Spousal Support
Child support and spousal support serve two distinct purposes.
Child support is support for children, and spousal support for the spouse.
Read more here: What’s the Difference Between Child Support and Alimony?
Child support typically ends when the child “ages” out.
Income Available For Support
The Dissomaster (program used to calculate support) is a funny thing. The amount the payor pays for spousal support will fluctuate if the payor also needs to pay child support.
For example: Husband and Wife with one child. Husband earns $120,000 per year. Wife earns 0. Assuming they share 50/50 of the child, and no other inputs, H would pay approximately $1,269 for child support and $1,822 for spousal support (alimony), total of $3,091 per month. If there are NO children, spousal support would be $2,860 per month.
So, alimony would be HIGHER by itself than paired with child support. This is because child support always takes precedence when the children are minors, and spousal support is based on what’s left.
So Can I Get an Increase when Child Support Ends?
As with all things, that depends.
Under California Family Code 4326, child support ending constitutes a change of circumstaces that MAY be the basis of modification by EITHER party.
This means it can be argued BOTH ways:
- The recipient may argue for an INCREASE because child support is ending – more need!
- The payor may argue for a DECREASE because children no longer need to be supported – less need!
California Family Code 4326 states the following:
a) Except as provided in subdivision (d), in a proceeding in which a spousal support order exists or in which the court has retained jurisdiction over a spousal support order, if a companion child support order is in effect, the termination of child support pursuant to subdivision (a) of Section 3901 constitutes a change of circumstances that may be the basis for a request by either party for modification of spousal support.
(b) A motion to modify spousal support based on the change of circumstances described in subdivision (a) shall be filed by either party no later than six months from the date the child support order terminates.
(c) If a motion to modify a spousal support order pursuant to subdivision (a) is filed, either party may request the appointment of a vocational training counselor pursuant to Section 4331.
(d) Notwithstanding subdivision (a), termination of the child support order does not constitute a change of circumstances under subdivision (a) in any of the following circumstances:
(1) The child and spousal support orders are the result of a marital settlement agreement or judgment and the marital settlement agreement or judgment contains a provision regarding what is to occur when the child support order terminates.
(2) The child and spousal support orders are the result of a marital settlement agreement or judgment, which provides that the spousal support order is nonmodifiable or that spousal support is waived and the court’s jurisdiction over spousal support has been terminated.
(3) The court’s jurisdiction over spousal support was previously terminated.
(e) Notwithstanding subdivision (b), a party whose six-month deadline to file expired between January 1, 2014, and September 30, 2014, may file a motion pursuant to this section until December 31, 2014. [Added by Stats. 2014, Ch. 202, Sec. 1. (AB 414) Effective August 15, 2014]
Read Marriage of Kacik
In re Marriage of Kacik 179 CalApp4th 410 101 Cal Rptr 3d 745 Cal App 2009 is a great case addressing Family Code 4326.
The Kaciks had a 16 year marriage, and one child together.
In 2001, the Stipulated Judgment awarded Wife $1,125 a mo in child support, and $1,625 a mo in spousal support. Child support was to last until their son Alexander turned 18. Spoualsupport was to last 7 years, after which it was to be reduced to $0 on February 15, 2008. The court was to retain jurisdiction over support until death, remarriage or further order of the court.
At the time of the separation Wife was 46 years old, not working and earning “0,” but the stipulated judgment recited that she had “the ability to earn not less than $1,000 per month in gross income.” Husband was earning $11,336 gross income a month.
Child Support Terminated, Wife Sought Modification 17 months later
The child support order terminated in August 2006 when their son reached 18. About 17 months later, on February 15, 2008—the precise date that the spousal support award was scheduled to step down to 0— Wife filed a request to modify and increase spousal support. At the lower court, Wife won.
Husband appealed. The appellate court took a look at Family Code section 4326 and focused on the time limit it seemingly requires. Wife’s child support order ended in 2006, and then she sought an upward modification 17 months later.
The appellate court held that 17 months after the termination of the child support order was too far removed to be considered “in effect” when she asked for an upward modification of spousal support. The court indicated that a reasonable time would be a few months and that Wife’s request was brought in the face of the pending termination of spousal support not the termination of the child support. Thus, the appellate court reversed the trial court’s decision and Wife’s spousal support was reduced to zero.
Time Limit to Modify Spousal Support Once Child Support Ends
There is a time limit!! Family Code 4326 gives a six-month deadline to file a spousal support modification based on child support termination.
Practice Pointer: Be specific in Your Judgment
In general, rather than leave things unspoken, a good practice tip would be to SPECIFY beforehand in your Judgment what would happen in the event of termination of child support.
You can do this by imposing a ceiling on alimony based on marital standard of living, or set a cut-off date for support. Or cut-off date for termination of jurisdiction.