Monday, January 25, 2010

Spousal Support in Long-term Marriage

It has been said that in life nothing is certain other than death and taxes. In the family law trade, a third certainty can be added–paying spousal support after a long marriage.

In the recent case of In re Marriage of Schmir, 11/16/05, Div 7, B175397 the court delineated the proper way to terminate support after a long-term marriage.

Judy and Maurice Schmir married in 1964; separated in 1987 and received a Judgment of Dissolution of Marriage in 1989. Maurice was ordered to pay Judy $5,800.00 per month in spousal support. In January 2003, Maurice filed a modification with the court to terminate his spousal support obligation. The hearing on the order to show cause filing occurred on October 2003 (although the court had reduced Maurice’s spousal support payments on a “interim basis” to $2,000.00 per month effective June 2003). At the hearing on October 2003, the court terminated Maurice’s spousal support obligation effective November 1, 2003.

Judy appealed from the trial court’s decision and the court not only reversed the termination of support, but delineated a detailed and specific new support order.

Although Judy had appealed the trial court’s order on several grounds, the appellate court denied all of them, with the exception of the trial court’s failure to afford Judy reasonable advance notice she needed to obtain gainful employment because her spousal support was ending in less than a month.

As the court stated:

“We find no error in the termination order itself. However, under the circumstances presented in this case we conclude the trial court abused its discretion in terminating Judy’s support without affording her a reasonable advance notice and opportunity to secure employment”.

The appellate court gave an excellent primer as to the changing social function of spousal support in the family law context.

The public policy of California regarding spousal support in a divorce following a long-term marriage has progressed from one which “entitled some women to lifelong alimony as a condition of the martial contract of support to one that entitles either spouse to post-dissolution support for only so long as is necessary to become self-supporting”, citing (In re Marriage of Pendleton & Fireman (2000) 24,Cal.4th 39, 53). As the court stated:

“Along with this change in attitude toward spousal support came the judicial recognition that before spousal support can be terminated or reduced, the supporting spouse… must be given fair notice of the expectation of some sufficiency and a reasonable opportunity to achieve such goals”.

The appellate court then discussed two cases, In re Marriage of Richmond (1980) 105 Cal.App.3d 352 and In re Marriage of Gavron (1988) 203 Cal.App.3d 705 that have provided the method for implementation of this view of spousal support.

In Richmond, the trial court ordered the husband to pay spousal support until a date certain at which time it would terminate forever, unless the supported spouse filed an order to show cause prior to said date to extend spousal support. In upholding that type of order, the appellate court in that case found that the supported spouse should bear the burden of coming forth with evidence since that party had better access to the relevant evidence. Thus this procedure, of shifting the burden of showing need prior to a termination date to the supported spouse, became known as a “Richmond Order”.

The Gavron case involved a modification of a support order after a 25-year marriage. Although the trial court granted the requested modification, the appellate court reversed explaining that the supported spouse needed to be affirmatively advised of the need to take steps to become self-supporting or possibly face termination. Thus, this admonishment became known as a “Gavron warning” notifying recipients of active spousal support, that they are expected to become self-supporting. This Gavron warning was codified by Family Code Section 4330, which was mandatory in all support obligations until 1999, when it became a discretionary warning. In Schmir, Maurice had argued to the appellate court that the current situation was distinguishable from Gavron because Judy was, in a sense, under-employed and not needing to obtain employment. The appellate court made short shrift of that distinction. The court stated:

“… We see no logical reason to distinguish between spouses who need to ‘become employable’ and spouses who are already employable. Equity and fairness requires spouses in both classes receive a reasonable notice and opportunity to find employment. How much advance warning is reasonable obviously depends on the circumstances of each case… It is not possible to set a minimum or maximum warning time….

In the present case, however, three weeks notice was clearly too short and even 10 months is problematic”.

In reversing the trial court, the appellate court modified the decision and laid out its own spousal support plan. First, the appellate court reversed the June 2003 order reducing the spousal support from $5,800.00 per month to $2,000.00 per month. The appellate court then modified by striking certain provisions of the court’s order and replaced it with the following:

“Judy’s support continue at the rate of $5,800.00 per month from June 2003 to such time as Judy obtains employment at the rate of at least $2,500.00 per month or ceases to make good faith effort to obtain such employment or attains the age of 65 years, whichever occurs first. If Judy obtains employment at the rate of at least $2,500.00 per month or ceases to make good faith effort to obtain such employment prior to obtaining the age of 65 her support shall be reduced to zero. At the request of Maurice, the trial court shall conduct a hearing to determine whether Judy is making a good faith effort to earn at least $2,500.00 per month. Such hearing, however, shall occur no more frequently than every three months.”

As such, Gavron, Richmond, and now Schmir, present a very discernible road map to terminate spousal support after a long-term marriage. Every award of spousal support should include the descretionary Gavron-type warning. Further, because the trial court may be reluctant to terminate the spousal support after long-term marriage a “Richmond” type order, shifting of the burden to the supported spouse who is in control of the evidence for additional need, may be more agreeable to a trial court.

Finally, even if a party is successful in terminating support, support cannot be abruptly terminated and as such a prospective termination with some future date may be the way to go.
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