Articles Posted in Post-Judgment Modification

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If you’re a big fan of the “Simpson’s” you may have heard that Harry Shearer, the voice of several of the shows iconic characters, is leaving the show. When a big star makes a movie or a star leaves a television show it usually makes the news, but people retire, change jobs, or are laid off on a daily basis. What do you do if you are involved in a Family Law proceeding and your income changes?

A change in your career can have far reaching effects on many aspects of your Family Law case, but it most immediately applicable to both child and spousal support orders. If there is a current order in place, it should tell you the protocol for informing your spouse of a change in your financial circumstances, but just informing your spouse may not protect you if your ability to pay your support award is compromised. Conversely, if you are receiving support and your ex-spouses income increases you may not be entitled to the increase solely because you are informed of the change.

Even when a change in income occurs, the court can usually only enforce the current order it has on file. Therefore, whether you need to reap the benefit of increased income or reduce the burden of an order you can no longer afford, you need to file the request with the court to modify your support to match your current financial circumstances. The court will then make a ruling in keeping with you and your ex spouse’s current financial situation.

Of course financial issues always become complex if one party is self-employed and/or owns a business, and it may require a more in depth analysis. Bickford Blado & Botros are experienced in representing clients in all aspects of any financial issues that come before the Family Court and we are experienced in dealing with the complexity of self-employed parties and business owners.
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Spousal support is a hot topic in divorce not only during the divorce process but also after the parties’ divorce judgment has been processed and finalized. We often meet with clients who are currently paying spousal support pursuant to court order and, based on a substantial change in circumstances, would like to request a downward modification of spousal support so they don’t have to fork out so much money each month to their ex-spouse. However, we sometimes also get requests from clients who are the recipients of a spousal support award and would like assistance with getting an upward modification of spousal support so that their ex-spouse actually pays them more each month.

A person currently receiving spousal support pursuant to the initial court order may be inclined to seek an upward spousal support modification if, for example, at the time of divorce the spouse receiving spousal support was making a decent living (and thus the need for spousal support was minimal) but post-judgment that spouse lost their job or has health issues that result in an increased need for spousal support to meet that person’s reasonable needs. Another potential reason that might pique a person’s interest for seeking an upward modification of spousal support includes situations (although quite rare) where the person paying spousal support hits the jackpot on the lottery and arguably now has a much higher ability to pay.

A request for a spousal support modification requires the party seeking the modification to show that there has been a material change of circumstances since the most recent order. The Court will consider whether there has been a significant change in any of the factors set forth in Family Code Section 4320 (the same criteria considered for initial order) when making the subsequent modification order, if any. These factors include, among others, the supporting party’s ability to pay, balance of hardships to each party, and the needs of each party based on the Marital Standard of Living (“MSOL”). The MSOL is the lifestyle enjoyed by the parties during marriage and is typically measured by the parties’ expenditures during marriage, including any funds put towards savings.While the Court has broad discretion to modify spousal support so long as there has been a material change of circumstances, the Court does not always have jurisdiction to do so. In many cases, spousal support is subject to subsequent modification (or even termination) so long as the spousal support order has not already expired and the court still has jurisdiction over spousal support. However, in accordance with Family Code section 3591(c), if the parties’ judgment has a provision that expressly states that the parties agreed to make the spousal support award non-modifiable, then spousal support cannot be modified post-judgment. In the absence of such an agreement, the court retains jurisdiction to make a decision to increase, decrease or terminate support in a later proceeding (post-judgment) pursuant to a request by one of the parties.

It is also important to note that a post-judgment increase in spousal support being granted by the Court is highly unlikely. While there is nothing that prevents the Court from increasing support, it is simply not very common in California Family Law Courts. And even if the Court is willing to entertain the idea of an upward modification of spousal support, the spousal support award would still be capped at an amount that meets the MSOL. Even if you have an experienced attorney on your side it’s important to have realistic expectations and understand that getting a significant increase in spousal support, or any increase for that matter, is not very common.
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Post judgment motions to modify support orders can be tricky. Less so with child support orders; which are often as easy as putting numbers in a program (income, child sharing percentage, statutory deductions, etc) and pressing the return button. However modifying permanent spousal support is another story.In order to justify a modification of permanent spousal support, you must be able to show “changed circumstances” since the prior order was made. There are many reasons for this requirement, such as the respect for prior court orders, the assumption that the court “got it right” when they made the prior order or simply to avoid parties coming to court every few months to try to get a new spousal support order. (This goes for both the payor wanting a lower support order and the payee wanting more monthly support) In terms of stipulated spousal support orders, the Court gives great deference and respect to the contracts of the parties, and will not disrupt those agreements without substantial justification. The reasons why a party must establish changed circumstances is not nearly as important as understanding the concept itself.

The concept of changed circumstances was summed up particularly well by the Court of Appeal in a case called Marriage of West. The facts of the case are unimportant. What is important is a quote from the decision which said:

“Change of circumstances means a reduction or increase in the supporting spouse’s ability to pay and/or an increase or decrease in the supported spouse’s needs. It includes all factors affecting need and the ability to pay.”

The focus of this blog is a discussion of the various ways a “payor spouse”, that is the spouse ordered to pay support, can move to modify or terminate spousal support post judgment.

Often times, years after a Judgment of Dissolution is entered the payor spouse will suffer a decrease in their income. This could be the result of losing their job, retiring, or loss of investment/passive income. Whatever the reason, the payor is no longer able to afford to pay support at the previous level. Based on the quote from Marriage of West (above), this is a fairly clear cut change of circumstances. [Note: If you voluntarily quit or depress your income, it can be a very different story. See my previous blog on this issue.]

Another situation is when the supported spouse’s needs have decreased. Examples of this are an increase in the supported spouse’s income, a reduction in their monthly expenses, or co-habitation with a non-marital partner. All of these situations result in a reduction in the supported party’s need for support, and are the basis for a motion to modify spousal support post judgment.

Termination of spousal support (not just reducing spousal support to $0), is a whole other animal altogether. Unless otherwise agreed to by the parties, spousal support generally terminates upon the death of either party or the remarriage of the supported party. Any other termination of support will require a showing that the supported spouse has become self-supporting and no longer has a need for support.

Whether a court will terminate spousal support will depend, in large part, on how long your marriage lasted. For marriages lasting less than 10 years the general rule of thumb is a payor spouse will pay spousal support for one-half the length of the marriage. For example if you were married for 8 years, you can expect to pay spousal support for 4 years. Of course, like most things in Family Law, none of this is set stone, so it is important that you discuss the specifics of your case with an experienced family law attorney.If your marriage lasted more than 10 years, the Court will not terminate spousal support unless you can clearly show that the supported party can meet their financial needs without support. Even if the moving party can make this showing, the court will sometimes set spousal support to $0 per month, but retain the ability to modify the amount in the future should circumstances change.

Another option available to a payor spouse is to request the court make a “Richmond Order.” As you have probably already guessed, this comes from the case Marriage of Richmond. (We are not very creative). Richmond Orders, sometimes called “step-down” orders, are usually made in long term marriages, and have the effect of putting the supported spouse on notice that they will receive support for a specified period of time. At the end of that period of time, support will either be terminated or reduced to $0 unless the supported spouse can prove they have the need for additional support or additional time. These types of orders are favored by the courts and are usually upheld on appeal.

Post Judgment spousal support modifications are a unique issue in family law, so it is important that you consult with a qualified family law attorney who is experienced with these types of cases.
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Gender neutral language has not always been present in the California Family Code.
For instance, the current California Family Code Section 4323(a)(1) reads as follows:

“Except as otherwise agreed to by the parties in writing, 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. Upon a determination that circumstances have changed, the court may modify or terminate the spousal support as provided for in Chapter 6 (commencing with Section 3650) of Part 1.” [emphasis added]

In other words, as the current provision stands, if you are paying spousal support to your ex-wife and she is now living with a member of the opposite sex (i.e. a new boyfriend) then a family law judge will presume that your ex-wife doesn’t need as much spousal support and you could perhaps petition the court for a modification of spousal support. This of course is merely a presumption, not a certainty, so your ex would have an opportunity to show the judge that there is not a reduced need for spousal support.

The problem with the provision as it is currently written is that many divorce attorneys represent clients who are paying spousal support to their ex who is actually cohabiting with a same-sex partner, with whom they are in a romantic relationship. If your ex-wife is now living with a female roommate and you have established that their relationship is indeed intimate then you would want the family law judge to presume that her need for support is now reduced. But because the presumption only applies to cohabitation with a person of the opposite sex, herein lies the problem that many San Diego attorneys come across.

However, in July 2014, Governor Jerry Brown passed Senate Bill 1306, which will remove biased language from the California Family Code and instead recognize married spouses equally, regardless of their gender. With the passing of SB 1306 and the subsequent changes to Family Code Section 4323 (a)(1), gender distinction in this family code section is essentially being rendered obsolete. Family Code Section 4323(a)(1) will read as follows and will take effect on January 1, 2015:

“Except as otherwise agreed to by the parties in writing, there is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabiting with a nonmarital partner. Upon a determination that circumstances have changed, the court may modify or terminate the spousal support as provided for in Chapter 6 (commencing with Section 3650) of Part 1.” [emphasis added]
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Spousal support is typically a contentious aspect of many divorces here in San Diego. Many divorcing couples spend a lot of time litigating the amount of spousal support to be paid by one party to the other. However, once the parties have settled or the Court makes a decision regarding the amount of spousal support, the party receiving the spousal support should also consider securing future payment of spousal support through a life insurance policy.

California Family Code Section 4360 specifically gives the family law court authority to order the supporting spouse to maintain life insurance on his/her life for the benefit of the supported spouse. The purposes of the life insurance is to ensure that the supported spouse will not be left without means of support in the event that the spousal support is terminated by the death of the party who has a continuing obligation to pay spousal support.

If you are the supporting spouse, you likely won’t want to be ordered to purchase and maintain life insurance for the benefit of your ex-spouse because then your ex-spouse will essentially “benefit” from your death. This can be a very unsettling feeling, especially in high conflict divorces where the supporting spouse is already bitter about paying spousal support.The amount of insurance provided pursuant to Family Code Section 4360 should relate to the actual amount of the spousal support obligation the supporting party was ordered to pay and the length of said obligation. A present value calculation as well as any potential tax savings (as a result of receiving the life insurance proceeds instead of taxable spousal support) should be considered in determining the level of life insurance to be maintained.

If you are the supported spouse, then it would behoove you to stress to the court that you want your ex-spouse to be ordered to maintain life insurance for your benefit. You will also want to make sure that the policy benefits are adequate and to that you are listed as the beneficiary of the policy so that you receive payment in the event of your ex-spouse passing away. Securing spousal support with life insurance may be very necessary for you to maintain your lifestyle or be able to support your children when your ex passes away.
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Relocation throughout the United States is generally a simple process; therefore, it is not uncommon for one or both parties to move to a different state after a divorce. In such cases, parents are faced with a jurisdictional dilemma with regard to their custody and visitation issues. Frequently as children get older their needs and schedules change significantly. In some cases the parents are able to adapt to new situations and reach agreements to modify outdated custody and visitation orders. However, in more high conflict cases, court intervention is necessary – especially if the parents no longer reside in the same state.

The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) is the governing law for determining whether a court can exercise jurisdiction over a custody and visitation matter. Under the UCCJEA, a California court may not modify another state’s custody order unless (1) the California court has jurisdiction to make an initial custody determination AND either (2) the court of the other state determines that it no longer has exclusive, continuing jurisdiction OR (3) a California court or a court of the other state determines that the child, the child’s parents and any person acting as a parent do not presently reside in the other state.California has jurisdiction to make an initial custody determination if California is the home state of the child on the date of the commencement of the proceeding. The “home state” is defined as the state in which a child lived with a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. Therefore, unless California is currently the home state of the child, it will not proceed with the rest of the analysis to consider whether it can modify another state’s order.

Once California has determined it is the home state of a child, the parties must meet item two or item three discussed above. If the court that made the initial child custody determination determines that it no longer has exclusive, continuing jurisdiction because the child and one parent fail to have a significant connection with the state and substantial evidence concerning the child’s care, protection, training and personal relationships is no longer available in that state, California may modify another state’s order. In addition, if none of the parties continue to reside in the state which made the initial custody order, California may modify an out-of-state custody order as long as all of the proper procedures have been followed.
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In the midst of a New York divorce case, father David Schorr gave his son a common ultimatum when his son demanded McDonald’s for dinner – “you can have dinner from anywhere besides McDonald’s or have no dinner at all”. In response, the stubborn five-year-old decided to have no dinner at all and threw a tantrum. Schorr immediately regretted the harsh position he had taken with his son but felt it was inappropriate to back down in response to his child’s outburst. While trying to convince his son to change his mind, Schorr took his son back to his mother’s house early and waited for her to return home.

In the Schorr divorce, the court appointed a neutral psychologist to evaluate the parenting abilities of both parents in the context of the best interest of the child. The psychologist recommended that, considering the “McDonald’s incident,” the Court should eliminate or limit Schorr’s weekend visits with his son. During the pendency of the divorce, Schorr has alternating weekend visits with his son and dinner with him each Tuesday. In response to the psychologist’s statements, Schorr has filed a lawsuit against her for defamation. As the suit was filed in early November, there is little information available regarding its progress.

During the pendency of a divorce action where child custody and visitation is a disputed issue, each party’s parenting is under strict scrutiny. In the Schorr case, one father’s attempt to teach his son discipline cost him time with his child. It is hard to imagine that legal parenting tactics such as spanking (within reason) and other various forms of discipline can result in a parent losing custody of his or her child. Outside of the parameters of a divorce case, if a problem is reported to authorities, such parenting decisions would be evaluated by Child Protective Services (“CPS”) rather than a court-appointed psychologist. It is not likely CPS would have removed a child from his father’s care based on the McDonald’s event described above. This is a cautionary tale for all parents involved in a custody dispute, even one “mistake” could cost you valuable time with your children.

In a California custody case, the court, the parties, or the attorneys have the ability to request a neutral evaluation be conducted by a mental health professional (like in the Schorr case). If both sides agree a neutral is needed, they can stipulate (agree) to appoint an evaluator without Court intervention. Generally, once the evaluation is complete, the evaluator will prepare a report outlining his or her findings. The expert’s report may be read by both parties and the judge in the case.
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The issue of spousal support is often a hot topic in divorce proceedings. In today’s economy, one specific aspect of spousal support that becomes a very important consideration the couples going through a divorce is whether the spousal support order will be modifiable or non-modifiable. Typically, an agreement for spousal support awarded to either party is subject to subsequent modification or termination by court order. However, Family Code Section 3591(c) provides that the parties may agree in writing (or oral agreement entered into in open court) to non-modifiable spousal support.

Modifiable spousal support means that a party could later file a post-judgment action with the court to request an increase, decrease or termination of spousal support upon demonstration of a change in circumstances that would justify a change to the original spousal support award. There are several reasons that a spousal support order might need to be changed. Perhaps the spouse who is receiving support no longer needs as much spousal support because he/she has had an increase in income or is cohabitating with a person of the opposite sex. Or if the supported spouse remarries, then spousal support needs to be terminated all together. On another note, sometimes the payee spouse, for reasons out of his/her control, has a significant decrease in income and can no longer afford the amount of spousal support that was ordered. The court would likely consider these factors in making a modification to the support order.

Non-modifiable spousal support, on the other hand, means the spousal support award will not be subject to modification or termination. Many divorcing couples may wonder if this is a good idea. The most common reasons why parties would want to agree to non-modifiable spousal support is that it gives both parties a sense of certainty because they know exactly how much they will be paying or receiving each month. This helps parties budget accordingly for future payments and expenses without having to worry that the amount may change at any time. Another reason a party would be inclined to agree to non-modifiable spousal support is if that party is expecting an increase in his/her income or a major upcoming payout, then he/she would not have to share that increase in income with his/her spouse.

While it may seem like there are some pretty good reasons to agree to non-modifiable spousal support, it is important to remember that if the parties waive their right to modify, it does not matter if there is a change in circumstances – a court absolutely will not modify the spousal support award. So, if the party receiving support wins the lottery jackpot, the payor spouse would still be stuck paying spousal support to him/her. Or, on the other hand, if the payor spouse becomes completely disabled and can no longer afford to pay spousal support, he/she will still on the hook for a spousal support payment, despite his/her inability to work.

Despite the uncertainty with modifiable spousal support, parties seem to have greater motivation these days to choose modifiable spousal support due to the high rate of unemployment. To ensure that you make the right decision regarding modifiable or non-modifiable spousal support it may behoove you to seek the assistance of an experienced divorce attorney.

Read reviews of Nancy Bickford, San Diego Divorce Attorney
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In January 2013, divorce attorneys were abuzz as our local Court of Appeal took a strong stance with regard to enforceability of Marital Settlement Agreements (“MSA’s”). In San Diego family law cases, the parties to a divorce have the ability to enter into agreements regarding any area of their case. Settling issues such as child custody/visitation, support, and property division is advantageous to the parties because they have the opportunity to craft unique provisions which meet their individual needs. San Diego family courts are limited by the California Family Code and local/state guidelines in what types of orders they can make. However, when parties and/or their divorce attorneys draft their own settlement terms it is imperative to consider all possible future scenarios before signing a Marital Settlement Agreement.

In the unfortunate case of Marriage of Hibbard, the parties to the divorce agreed that spousal support “shall not be reduced to an amount lower than two thousand dollars per month” and would only terminate upon Wife’s death or remarriage or the death of Husband. In this case, the parties were married for thirty years from 1971 to 2001. At the time of separation, Husband and Wife were both lawyers. Husband earned $84,000 per year and Wife earned $24,000 per year. In 2011, Husband’s post traumatic stress disorder (“PTSD”) fully manifested and hindered his ability to work. Husband’s PSTD symptoms began in 1970 after he served in combat in Vietnam.

In 2012, unable to work more than a few hours a day and drowning in debt, Husband filed a motion in family court to modify spousal support. After shutting down his law practice, Husband only expected to receive $4,040 per month in income from disability and Social Security. Wife opposed Husband’s request to modify support stating she was only receiving $1,738 per month in teacher’s retirement and Social Security. Wife also stated she was similarly unable to work. The trial court held that it was unable to modify spousal support outside of the terms of the marital settlement agreement and therefore refused to reduce support lower than $2,000 per month. The Court of Appeal upheld the trial court’s decision.

Marriage of Hibbard is a great example of the importance of carefully considering and drafting Marital Settlement Agreement provisions. Before singing their Marital Settlement Agreement, the Hibbards could have easily imagined a situation where Husband would be financially unable to pay Wife $2,000 per month in spousal support. However, they did not provide any exceptions to the blanket prohibition on a spousal support award lower than $2,000 per month. The Court upheld their agreement despite its unfair applicability to the parties’ current circumstances. Marital Settlement Agreements are interpreted under general contract laws which hold that contracting parties have the right to enter into any agreement of their choosing. Divorce attorneys will advise their clients that the role of the court is not to re-write agreements but rather to enforce them as written.

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Brendan Fraser and Afton Smith married in 1998 and divorced nine years later in 2007. At the time of their divorce, Fraser was ordered to pay Smith approximately $900,000 per year for spousal support and child support for their three children. Now, Fraser claims that he can no longer make the required payments, which, if made on a monthly basis, total $75,000 per month. Fraser has filed a motion in family court seeking a post-judgment modification of child and spousal support.

In San Diego, after a divorce is finalized, family courts generally have the ability to change support orders if facts and circumstances have materially changed since the first orders were made. If the moving party can prove to the court a “material change of circumstances” he or she may be granted a post-judgment modification of support. One of the most common changes of circumstance relied upon by courts is a change in income for one or both parties. If the spouse ordered to pay support has experienced a significant decrease in earnings, the court may lower his or her support obligation.

However, it is important to note that San Diego family courts only have the ability to modify the support order back to the date a motion was filed. If one spouse gets fired and does not file a motion to modify support for a few months, he or she may owe a significant amount of back child and/or spousal support. Regardless of a spouse’s current income, his or her obligation to pay support will not change until a motion is filed with the court. Even in cases where a judge determines that a material change of circumstances exists and that support should be modified going forward, he or she is not required by law to make the order retroactive to the date the motion was filed.

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