In Dissolution cases involving children, the Court will likely Order a combination of child and spousal support upon request of a party. This is not necessarily earth-shattering news. However, the amount and duration of spousal support after a long-term marriage (10+ years) is always the subject of negotiation for counsel and the parties. The Courts consider the marital standard of living, earning capacity of the supported spouse, the health and age of each spouse and a myriad of other factors as set forth in Family Code Section 4320 in making a ruling on permanent spousal support.

Given that these factors allow for such wide discretion on the part of the trial Court, many litigants forego the time and expense of a trial and negotiate the amount and duration of spousal support after a long term marriage. However, absent one party having a “crystal ball" allowing him or her to see into the future, many of the factors to discuss and consider for permanent spousal support involve significant speculation. To remedy that problem, many litigants agree to a base amount of spousal support over a specified period of time with a date upon which spousal support is to be set to zero, but at the same time allow the Court to “reserve jurisdiction" over spousal support indefinitely. What this means is that once the spousal support goes to zero pursuant to the negotiated agreement, the supported spouse may petition the Court for an additional award of spousal support. To prevail, he or she must show that certain “changed circumstances" warrant an additional award of spousal support.

Typical grounds asserted for a change in circumstances include serious bodily injury precluding a spouse from working, the loss of employment altogether, an increase in living expenses, etc. Alternatively, some supported spouses will lose income gained from child support payments when his or her child(ren) turn eighteen. Family Code Section 4326 provides that a spouse who is receiving spousal support can petition the Court for an increase in spousal support if a child support Order terminates.

In the recent case of Marriage of Kacik, (2009) 179 Cal. App. 4th 410, our Appellate Court was confronted with a wife who had her child support order terminate when her eldest child reached the age of eighteen. The primary question on appeal was the language in Family Code Section 4326 as it applied to wife. The statute provides that the Court shall consider it a change in circumstances allowing a modification of spousal support if “a companion child support order is in effect" and thereafter terminates. In Kacik, the wife waited more than seventeen months after child support terminated to file her motion to modify spousal support. Husband’s argument was that since the child support Order was no longer “in effect," that wife had lost her opportunity under the language of the statute to petition the Court for more spousal support based on that changed circumstance.

On appeal, the Court noted that the specific language of the statue seemed to preclude wife’s application, because at the time she filed for a modification of spousal support, the child support Order had already terminated and was no longer “in effect." However, to reconcile the legislative intent of the statute (to provide supported spouses an avenue to modify spousal support when child support terminates) and the actual wording of the statue (the motion must be filed when the child support is still in effect), our Court “bent the rules" a bit. In essence, the Kacik opinion held that as long as the supported spouse files a motion to modify support within a “reasonable time" after child support terminates, he or she is within the ambit of Family Code Section 4326. Unfortunately, for the wife in Kacik, the Court held that seventeen months was too long to be considered “reasonable" under the Court’s interpretation of Family Code Section 4326.

An important lesson from Kacik is that when negotiating spousal support after a long term marriage, the parties should put the assumptions upon which the support amount is based in the actual agreement. In Kacik the Court assumed, but had no proof of, the idea that husband and wife contemplated that child support would eventually terminate while spousal support was still in effect. Prudent litigants should insist on putting into their Marital Settlement Agreement that the negotiated upon amount and duration of spousal support takes into account that child support will eventually terminate. In that way, both parties will avoid the time and expense of protracted litigation over spousal support if/when child support terminates as a “changed circumstance."