One of the hot button issues in any divorce case is spousal support.  Standard questions that might float through a party’s mind include, but are not limited to, “what party will pay support?”, “how much support will I pay/receive?”, and “how long will I pay/receive support for?”  This blog will focus on spousal support duration and termination.  For information regarding how spousal support is calculated, please review one of our other blog posts or call our office for more information.               

In California, “except on written agreement of the parties to the contrary or a court order terminating spousal support, the court retains jurisdiction indefinitely in a proceeding for dissolution of marriage or for legal separation of the parties where the marriage is of long duration.” (See California Family Code section 4336(a)(emphasis added.)  Pursuant to Family Code section 4336(b), a marriage of long duration includes any marriage (from the date of marriage to the date of separation) lasting 10 years or longer.  Therefore, in California, the court generally retains jurisdiction to make spousal support orders for marriages lasting 10 years or longer.

So how does one party attempt to terminate spousal support if they have been paying their ex-spouse for many years?  One strong argument in support of terminating spousal support is if the receiving spouse is, or has become, self-supporting.  California courts have long held that a supported spouse is entitled to support for only so long as is necessary to become self-supporting.  (“[T]he public policy of this state has progressed from one which ‘entitled some women to lifelong alimony as a condition of the marital contract of support’ to one that entitled either spouse to postdissolution support for only as long as is necessary to become self-supporting.”)  (In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 35.)  In other words, support should terminate when the need for it no longer exists.  (“[I]nherent in the required consideration of the circumstances of the parties, is the power and duty of the court to terminate support when the need for it no longer exists.”)  (Peterson v. Peterson (1973) 30 Cal.App.3d 477.)  So, if a party has acquired a new job where they earn enough income to support themselves, the party paying them support can argue that they are now self-supporting and their need for support no longer exists.

But what if the spouse receiving support has not made any effort to become self-supporting?  For example, what if the party receiving support has not made any effort over the last 5 years to find a job or enroll in educational classes to make them more employable?  Does the spouse paying support need to support them, forever?  Generally, the answer is no because it is California’s public policy that when a court orders spousal support the supported spouse needs to become self-supporting within a reasonable amount of time.  (“The goal that the supported party shall be self-supporting within a reasonable about of time.”)(Fam. Code § 4320(l).)  However, before the court can reduce or terminate spousal support on the basis that a spouse has not become self-supporting, the supported spouse must be “aware” of this judicial expectation of future self-sufficiency.  This is called a Gavron warning and can be explained in more detail by your attorney.

Another argument why spousal support should be reduced or terminated all together is because the party receiving support is now residing with their new boyfriend, or girlfriend, and their need for support has reduced.  Pursuant to Family Code section 4323(a), “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.”(emphasis added.)  This presumption that a party’s need for support is decreased if they reside with a new partner is because that party generally shares the costs of living with their new girlfriend or boyfriend.  The courts assume that people who live together share in the costs of rent/mortgage, utilities, groceries, and other necessities of life.  If a party’s expenses go down, then they do not need as much support from their ex-spouse.

The above scenarios are only a few examples of when it might be appropriate to request the court to terminate, or reduce, spousal support.  There are other situations where it might also be appropriate to request a support modification.  It is best to consult with a trained professional to understand all your options.

 

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