HOW DO I REDUCE OR MODIFY MY PERMANENT SPOUSAL SUPPORT OBLIGATION?
If you have a Marital Settlement Agreement / Divorce Judgment that orders you to pay spousal support to your ex spouse, and you wish to have it changed, the burden is on you to show a material change of circumstances since the last order was made, that affects the supported party’s need or your ability to pay the support.
The court considers a variety of factors outlined in Family Code §4320 in determining whether to modify spousal support. Those factors include, but are not limited to:
- The extent to which earning capacity of each party is sufficient to maintain the standard of living established during the marriage
- The extent to which the supported party contributed to the attainment of an education, training, career position, or license by the supporting party;
- The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets and standard of living;
- The needs of each party based on the standard of living established during the marriage;
- The obligations and assets, including separate property of each party;
- The duration of the marriage
- The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of each party;
- The age and health of the parties;
- Documented history of domestic violence
- Immediate tax consequences to each party;
- The balance of hardships to each party;
- The goal that the supported party shall be self-supporting within a reasonable period of time. Except in marriages of long duration (10+ years), reasonable period of time is usually one-half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or shorter period of time.
- Any other factors the court determines are just and equitable
Trial courts have broad discretion in determining the meaning of “self-supporting” in any particular case. Although in general, the meaning of the term self-supporting is achieving the martial standard of living (see Hogoboom and King, supra, at ¶ 6:926.1, p. 6-336), the concept of the marital standard of living is itself often quite broad. Further, courts have held that the goal of achieving the marital standard of living may decrease in relative importance over time. (See In re Marriage of Rising (1999) 76 Cal.App.4th 472)
Even in marriages of long duration, the Appellate court in Marriage of Shaughnessy stated:
“that fact alone does not justify an unlimited spousal support award. In the absence of circumstances demonstrating that a spouse is incapable of becoming self-supporting, a person in Michelle’s position cannot reasonably expect to receive spousal support indefinitely. Rather, the spouse should expect to be required to become self-supporting within a reasonable period of time”. (In re Marriage of Shaughnessy (2006) 139 Cal.App.4th 1225)
When the party being supported has unreasonably delayed or refused to seek employment consistent with his or her ability, that may be taken into consideration by the court in modifying the support. In the Shaughnessy case, the Court found that the Wife’s failure to become self-supporting constituted a change of circumstances justifying a modification of the spousal support award. The California Supreme Court has held that trial courts should be reticent about terminating spousal support in a long term marriage unless there was evidence that the supported spouse will be adequately able to meet his or her financial needs at the time selected for termination of jurisdiction. (In re Marriage of Morrison (1978) 20 Cal.3d 437, 453).
If the court feels the evidence justifies an order terminating jurisdiction at a future date, but is concerned about unforeseeable circumstances which might arise prior to that date, the proper approach would be to issue the kind of order approved by In re Marriage of Richmond (1980) 105 Cal.App.3d 352, 164 Cal.Rptr. 381. This “Richmond Order” would set a termination date that would go into effect unless the supported spouse filed a motion prior to that date showing good cause why the order should be modified either as to amount or term of jurisdiction , or both.
WHAT ABOUT NOTICE?
The Court in Marriage of Gavron (1988) 203 Cal.App.3d 705, has held that the supported spouse must be made aware of the court’s expectation that the spouse will attempt to become self-supporting. That could be a statement by the court at the time the original support order was made or even a box checked in the judgment indicating that this provision applies and that the court expects the supported spouse to make efforts to become self-supporting.