MODIFICATION OF SPOUSAL SUPPORT ORDERS:
This is a guide to understanding the Modification of Spousal Support orders so that you can ask the right questions and provide your attorney the information he or she needs to help you.
My former spouse is living with someone of the opposite sex. Is this fact grounds to terminate or otherwise reduce my spousal support obligation?California Family Code Section 4323 provides that there is a rebuttable presumption that there is a decreased need for spousal support where the supported party is cohabitating with a person of the opposite sex.
The age old problem of former spouses not remarrying in an effort to keep their spousal support was aided with the enactment of FC Section 4323.
What is a rebuttable presumption? It is a legal procedure that shifts the burden of proof to the other party in litigation. There are many laws that include presumptions in the Family Code. You may recall during your divorce that property acquired during the marriage is presumed to be community. You likely were required to prove that you made a separate property contribution to your home or other asset.
How does this presumption help the spouse paying spousal support? It helps because it shifts the burden of proof to the supported spouse. The Court will automatically presume that your former spouse's needs are reduced by his or her cohabitation. It will be up to your former spouse to prove that the cohabitation does not reduce your former spouse's needs for support from you.
This does not mean you shouldn't do your homework and obtain financial documents and other evidence to support your case. But the shifting of the burden of proof to the supported party does make your job a bit easier.
Be sure to have your spousal support orders reviewed every couple of years.If your former spouse has not remarried which terminates your obligation to pay support and is not living with someone of the opposite sex, you should be sure to have your ongoing spousal support orders reviewed every couple of years. Unless you agreed to spousal support orders that are non-modifiable there may be circumstances that have occurred that allow the Court to reduce or terminate the orders.
Your former spouse's ability to increase his or her marketable skills and earning capacity may very likely be an appropriate change of circumstances to modify the support order setting it at zero.
The passage of time could be a sufficient change of circumstances. The farther away from the issuance of the support order the more likely the Court will modify it.
For example: I spoke with a client recently who had a 14 year marriage. He has paid spousal support for 8 years. In other words, he has paid support for more than one half of the period of the marriage.
This is an important fact because California law imposes a duty on the supported spouse to become self-supporting within a reasonable period of time. See the factors set forth in Family Code Section 4320. The reasonable period of time is defined as one half the length of the marriage. So the farther away from the divorce you are the more likely the Court will reduce or set the order at zero.
What effect does my retirement have on the amount of spousal support I am required to pay?Your retirement is also a change of circumstances allowing the Court to modify the spousal support orders. California law does not require that you continue to work after retirement age because you have a former spouse to support. You have the right to retire at a reasonable retirement age.
At the time of retirement most people's incomes significantly reduce warranting the modification of the support orders. Unless there is some huge age gap between you and your former spouse, you both will be drawing on your retirement assets about the same. It is likely that you had to divide the community property assets at the time of the divorce. Therefore, even if your former spouse does not have new retirement assets of his or her own he or she would be drawing on his or her share of the community assets which would have grown since that time and presumably have equal income to you. In most cases the disparity between the parties' incomes reduces also reducing or terminating the spousal order altogether depending upon other circumstances in the case.
BE AWARE that grounds to increase a spousal support order are available with the loss of a child support order.Family Code Section 4326 was enacted in 2014 which allows a supported spouse to modify a spousal support order after a child support order terminates. As you may know the spousal support order takes into consideration the amount of child support that a supported spouse is receiving at the time it is calculated. The law now views the termination of the child support orders as a sufficient change of circumstances to modify the support orders to increase the amount.
CONCLUSIONIn conclusion, you should return to the attorney who represented you in your divorce or seek the counsel of another experienced family law attorney to have your spousal support orders reviewed. There may be some change of circumstances that you may not be aware of that may affect your obligation to pay spousal support.
Call our office today to discuss how we can help you with your modification of spousal support case.