Terminating Permanent Spousal Support
Following a long-term marriage, a divorce judgment is likely to contain a provision for permanent spousal support. That is, an order that one party pay the other party monthly spousal support in a certain amount with no stated end date.[i] However, permanent does not necessarily mean forever.
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 of the parties where the marriage is of long duration.[ii] For the purpose of retaining jurisdiction, there is a presumption affecting the burden of producing evidence that a marriage of 10 years or more, from the date of marriage to the date of separation, is a marriage of long duration.[iii]
The court retains discretion to terminate spousal support in later proceedings on a showing of changed circumstances.[iv] “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.[v] It includes all factors affecting need and the ability to pay.[vi] A court asked to modify support must consider all of the factors under Family Code section 4320.[vii]
The trial court exercises broad discretion in deciding whether to reduce or terminate a spousal support order. Its order must be based on (1) a material change in facts or circumstances existing at the time the order is made and (2) a consideration of the needs of both parties and their respective abilities to meet their needs.[viii]
Perhaps the spouse receiving support has moved in with a new partner but not married. “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…”[ix]
It is not relevant whether the supported party holds out to the world that he/she is romantically involved with another person or not. “Holding oneself out to be the spouse of the person with whom one is cohabiting is not necessary to constitute cohabitation as the term is used in this subdivision.”[x] “Cohabitation may reduce the need for spousal support because “sharing a household gives rise to economies of scale.”[xi] “Also, more importantly, the cohabitant’s income may be available to the obligee spouse.”[xii]
Perhaps the supporting spouse ends up depleting his/her savings while the supported spouse maintains or even grows his/hers. Perhaps both parties reach retirement age and find themselves on equal footing. (“In the instance of a bona fide retirement…a trial court may determine that there has been a material change in circumstances to justify a modification of support.”[xiii])
Or perhaps so much time has passed that the payment of spousal support is no longer equitable, or as one court put it: “Indeed at some point it is conceivable the lengthy duration of support, even if examined superficially, will be clearly unjust in light of the short duration of the marriage and will alone qualify as a changed circumstance.”[xiv]
Many changes occur in life, and many of these have the potential to warrant a modification or even termination of spousal support. The point is – if you are a party to a divorce judgment ordering permanent spousal support, that order is not necessarily your fate. Unless the order was explicitly made unmodifiable, if circumstances change in your life, you can go to the family court and request that the support order be modified commensurate with whatever changes have occurred in your life.
[i] (As opposed to an order with an explicit end date, e.g., a party is to pay the other party monthly spousal support in a certain amount for three years.)
[ii] Fam. Code § 4336 (a).
[iii] Fam. Code § 4336 (b).
[iv] Fam. Code § 4336 (c). A spousal support order is modifiable upon a material change of circumstances since the last order. In re Marriage of West (2007) 60 Cal. Rptr. 3d 858.
[v] In re Marriage of West (2007) 60 Cal. Rptr. 3d 858.
[vii] Marriage of Shimkus (2016) 244 Cal.App.4th 1262, 1273.
[viii] In re Marriage of Reynolds (1998) 74 Cal. Rptr. 2d 636, 638.
[ix] Family Code § 4323 (a) (1).
[x] Family Code § 4323 (a) (2).
[xi] In re Marriage of Bower (2002) 117 Cal. Rptr. 2d 520, 525.
[xii] Id. (Citation omitted.)
[xiii] In re Marriage of Reynolds (1998) 74 Cal. Rptr. 2d 636 (citations omitted).
[xiv] In re Marriage of Heistermann (1991) 234 Cal. App. 3d 1195, 1205.