Separate Estate Spousal Support In California
It is true that some California cases seem to require--albeit without any real analysis--aggregation of separate property and community property assets awarded in the final division of the marital property when making the determination whether a spouse's " 'separate estate' " is " 'sufficient for his or her proper support' " within the meaning of section 4322. (Biderman, supra, 5 Cal. App. 4th at p. 411; McElwee, supra, 197 Cal. App. 3d at p. 906; In re Marriage of Cosgrove (1972) 27 Cal. App. 3d 424, 427, 434 103 Cal. Rptr. 733; see also Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 1999) P 6:977, p. 6-347.)
However, other courts have expressly refused to consider income derived from community property awarded to the supported spouse in the division of the marital property when deciding whether to deny, reduce, or terminate support; and numerous other cases have held that a supported spouse is not required to invest and manage his or her estate so as to maximize income, or to invade capital (especially where the capital asset was community property awarded to the supported spouse in the division of the marital property) to meet his or her current support needs.
In re Marriage of Martin (1991) 229 Cal. App. 3d 1196, 1199, 1201 280 Cal. Rptr. 565;
In re Marriage of Kennedy (1987) 193 Cal. App. 3d 1633, 1640 239 Cal. Rptr. 151;
In re Marriage of Norvall (1987) 192 Cal. App. 3d 1047, 1061 237 Cal. Rptr. 770;
In re Marriage of Rabkin (1986) 179 Cal. App. 3d 1071, 1081 225 Cal. Rptr. 219;
Sammut v. Sammut (1980) 103 Cal. App. 3d 557, 563-564 163 Cal. Rptr. 193;
In re Marriage of Kuppinger (1975) 48 Cal. App. 3d 628, 635 120 Cal. Rptr. 654;
Buehler v. Buehler (1946) 73 Cal. App. 2d 472, 475-476 166 P.2d 608;
Farrar v. Farrar (1920) 45 Cal. App.. 584, 586 188 P. 289.
Indeed, except where there is a showing of a lack of prudence and diligence in managing investments (see, e.g., Biderman, supra, 5 Cal. App. 4th at pp. 413-414; McElwee, supra, 197 Cal. App. 3d at p. 906), or purposeful minimization of income (see, e.g., In re Marriage of Roesch (1978) 83 Cal. App. 3d 96, 102-103 147 Cal. Rptr. 586 trial court did not abuse its discretion by awarding relatively small amount of spousal support where wife requested and received high-value, non-income-producing assets in the marital property division), it appears that California courts do look only to actual income produced from the supported spouse's assets when deciding whether the trial court abused its discretion by making or extending a particular spousal support order, including one challenged under section 4322 (see, e.g., In re Marriage of McNaughton, supra, 145 Cal. App. 3d at pp. 850-853).