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A Divorce Court May Not Consider a Recipient Spouse’s Support of an Adult Child when Determining the Spouse’s Need for Spousal Support Purposes

After a divorce proceeding of a 26-year marriage husband was ordered to pay $520 a month in support for wife. At the time of the divorce proceeding husband was earning $4,438 a month working for Unocal.  He then lost his job. Husband later found a new job as a grounds keeper that paid $2,118 a month and his divorce lawyer subsequently filed a motion to reduce the spousal support payments based on a change in circumstances. The divorce court ordered spousal support reduced to $450 a month with an additional step down to $400 a year later. Subsequently, husband’s divorce lawyer brought another motion to reduce the support based on the fact that one of their adult children was employed and wife no longer had to support the adult child. However, the divorce court sided with wife’s divorce attorney and did not modify the spousal support order on this basis.

On appeal, the Court reversed the divorce court’s decision. Husband worked an additional 16 hours in addition to his full time employment to achieve a total monthly income of $2,500. The Court explained husband was not required to work extraordinary hours for the purposes of supporting his ex-spouse. The Court of Appeal agreed with husband’s divorce attorney and stated that the marital standard of living is only one factor considered in determining the amount of a support order. Additionally, income from a new spouse is not to be considered in determining the amount of support. The Court explained that it was improper for the divorce court to have found that husband’s higher standard of living that resulted from his overtime work and the earnings of his new spouse were relevant to the spousal support amount payable to his former spouse. Furthermore, the divorce court incorrectly considered that wife had been supporting the couple’s adult children and two grandchildren. The Court explained wife’s payments to any adult children should not have been considered because they were not “incapacitated” and thus constituted “indirect” adult child support. Therefore, the Court concluded it was an abuse of discretion to deny husband’s motion to modify the spousal support order. The Court found a change in circumstances existed and ordered the spousal support obligation to be reduced on that basis.

In re Marriage of Serna (2000) 85 Cal.App. 4th 482