FAMILY CODE SECTION 4322: SECRET WEAPON IN HIGH WEALTH SPOUSAL SUPPORT CASES?

Written by Robert A. Roth^*

A statute with origins in 1872 has potentially dramatic implications for the spousal support rights of the ultra-wealthy. Family Code section 4322 states that "no [spousal] support shall be ordered or continued" when the conditions of the statute are met. Section 4322 offers an avenue for opposing support independent of the amorphous section 4320 factors and may support denial of support even when one spouse has a bigger asset base or higher earning capacity than the other. Yet, the statute is frequently overlooked by litigators and has received surprisingly little discussion in the published case law.

The power of section 4320 is illustrated by the fact that the author recently won an appeal reversing a $972,000/year Ostler-Smith spousal support award for the trial court’s failure to properly consider section 4322, which ultimately will likely save our client millions of dollars.¹ This article explores the wording, history, and strategic application of section 4322 when support is at issue in high asset cases.

A. THE TEXT OF FAMILY CODE SECTION 4322