Family
Aug. 2, 2002
Legislature Should Reconcile Sections on Spousal Support
Forum Column - By Ruth D. Shapin - Divorce often leaves a former spouse, usually the woman, with a reduced standard of living. Studies have shown that after divorce, men's standards of living rise while those of women and children decline sharply. Family Code Section 4323(b), which states that "The income of a supporting spouse's subsequent spouse or nonmarital partner shall not be considered when determining or modifying spousal support," contributes to the inequity.
By Ruth D. Shapin
Divorce often leaves a former spouse, usually the woman, with a reduced standard of living. Studies have shown that after divorce, men's standards of living rise while those of women and children decline sharply. Family Code Section 4323(b), which states that "The income of a supporting spouse's subsequent spouse or nonmarital partner shall not be considered when determining or modifying spousal support," contributes to the inequity. The Legislature should amend this section so that the indirect effect of the new partner's income can be considered by the courts in setting spousal support.
The recent case of Romero v. Romero, highlights the unfairness of this section. In Romero, the parties divorced after 28 years of marriage. The ex-husband was ordered to pay $1,200 in spousal support per month. The ex-wife subsequently declared bankruptcy, lost the family home and started living in a rented room. The ex-husband, on the other hand, had a new spouse who was earning $6,500 a month, lived in a house on a golf course and belonged to a country club. After being diagnosed with Parkinson's disease, the ex-husband retired, and he filed for a reduction of spousal support.
The Romero trial court reasoned that there was no way to avoid considering the new spouse's income because the ex-husband's Income and Expense Declaration indicated that his new spouse's income was partially responsible for paying his expenses. The court determined that the total family finances were "inextricably intertwined" and denied the request for modification.
The California Court of Appeal reversed and remanded, however, holding that the indirect effect of a new partner's earning must not be considered. The court found that Section 4323(b) did not resolve the issue of whether courts may consider the indirect effect of a new partner's income on a supporting spouse's ability to pay and standard of living. But the court, nevertheless, decided to interpret the section as prohibiting trial courts from considering these indirect effects.
Courts also must consider Section 4320 when awarding or modifying support, a section which seems to contradict Section 4323(b). Section 4320 requires that courts consider the needs of each party based on the standard of living established during the marriage and to consider the supporting party's unearned income, assets and standard of living, which would seem to include the new partner's contributions. Romero, however, conveniently ignores Section 4320.
When a new partner's income defrays a portion of a supporting spouse's expenses, the resulting available income should be considered in the spousal support determination. It is against public policy for an individual to live in poverty while the ex-spouse enjoys the benefits of a spouse with a generous income. The state Legislature should come to the rescue of these disadvantaged ex-spouses and reconcile Sections 4320 and 4323(b).
Ruth D. Shapin is a partner with Shapin & Buchanan in Santa Ana.
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