by Aaron Dishon, Esq.
Many clients approach me and ask if it is possible to terminate spousal support.
Often times these people were previously married for a long duration and have been paying a significant amount of support for several years, and sometimes for many years.
Often times these people were told by their prior counsel that they would have to pay spousal support for many years, and they feel as if there is no hope for terminating support.
Often times people have been to several attorneys prior to me who have told them there is no hope of ending spousal support.
Usually after I review the judgment or marital settlement agreement as well as the case history I am able to ascertain a multi-pronged strategy to terminate or at least reduce spousal support.
Furthermore, several recent appellate court decisions have emphasized the concept that spousal support is temporary in nature, and that even in marriages of long duration, spousal support should eventually come to and end. I keep abreast of all these cases and legal developments and will inform you of how they apply during our consultation.
My strategy usually commences by reviewing the judgment of dissolution. I ascertain what the judgment says about the parties’ marital standard of living as well as the length and duration of support and the modifiability thereof. Oftentimes where clients will think support is non modifiable it may in fact be changed.
I look to see whether there has been a “gavron warning”– and admonition that the court often makes requiring the supported spouse to become self-supporting within a reasonable period of time. Where the duration of the marriage is less than ten years a spouse is expected to be self-supporting within half the length of the marriage as measured between the date of marriage and date of separation. However, a marriage with a duration of more than ten years has no such time rule.
Many attorneys and spouses believe that California has lifetime support for parties whose marriage exceeds ten years. These people are wrongly informed! Family code section 4320 as well as several appellate cases emphasize that even in marriages of greater than ten years the spouse has a duty to become self supporting as soon as reasonably possible.
I always look to see what the supported spouse has done to work towards self sufficiency since they have separated. Whether it has been two years or ten years after the divorce, the supported spouse had better be making some efforts towards paying their way.
If they have in fact increased their earnings, we will bring this out in court, and argue that there is less need for support. If they have not been making any efforts towards working, we will ask for the spouse to undergo a vocational examination so as to ascertain their ability to contribute towards their own support. If there has been no gavron warning in that past, we immediately ask for one– a warning that the supported spouse needs to become self sufficient.
Oftentimes the supporting spouse is concerned that their income has increased significantly since the time of the divorce and that they will have to pay more support. Pursuant to the law, it is the martial standard of living that governs and increased income for the supporting spouse must not be taken into account. Post-separation increases in income for the supporting spouse may not be used as a basis for increased spousal support. In re Marriage of Hoffmeister [Hoffmeister II] (1987) 191 Cal.App.3d 351, 236 Cal.Rptr. 543.
Cohabitation may also be the basis for seeking a decreased spousal support award. Family Code section 4323(a)(1) provides that “there is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabiting with a person of the opposite sex….”. This statute is interpreted to apply where the supported spouse is cohabitating in a romantic relationship with a person of the opposite sex. Cohabitation can be difficult to prove.
Other recent California appellate court decisions have held that here is an absolute right for the supporting spouse to retire at age 65.
Another recent decision held that where a spouse has sufficient separate property assets, or where she receives such assets in a settlement, the court must take them into account and if they are sufficient to meet her needs, spousal support is not appropriate. Furthermore, the courts have held that liquid assets held by a supported spouse should be attributed a fair rate of return and considered for purposes of reducing or terminating spousal support.
The general nature of the appellate court decisions is to cut back on the long term nature of spousal support. These new court decisions seem to open many opportunities to reduce or terminate spousal support.
Each individual case that I review has its own specific facts and the above discussion is general in nature, and not intended to constitute legal advice. If you have questions as to how to terminate or modify your spousal support order I would be more than happy to meet with you to review your court orders and give you a detailed analysis on how to proceed.