The good news is that there is a way to end or decrease spousal support. Spousal support does not have to last forever. For marriages of less than 10 years, that is almost always true. Half of the length of the marriage is typical. For marriage of 10 years or more, otherwise known as marriages of long duration, spousal support can still end or lower at some point. Spousal support is not indefinite. The Song Family Law Firm, an experienced Orange County spousal support attorney, can create the best strategy for modifying or terminating spousal support.
In order to change or terminate spousal support in Orange County, you will hear a very important phrase, “change of circumstances.” This is the prerequisite to modifying or terminating spousal support, otherwise known as the burden of proof. Something must have changed since the order was made and the change has to be significant. Income loss can be that change, but only when the income loss is due to losing a job or retirement.
In most cases, quitting a job will not qualify, even if it was for a good reason. For example, in one case, entitled Marriage of Ilas, the husband quit his pharmacist job to go to medical school, and the trial court judge said no modification. Mr. Ilas appealed and argued that he was improving himself by fulfilling a lifelong dream. He also argued that he did not have any bad motive. But, the appeals court said, “Mr. Ilas did not have the right to divest himself of his earning ability” at the expense of those he needed to support. That he could pursue a degree, but that he must also continue to fulfill his financial obligations. (Marriage of Ilas (1993) 12 Cal.App.4th 1630, 1639.)
On the other hand, retiring at retirement age usually does qualify as a change of circumstance, if the retirement results in lower income. No one can be compelled to work after the usual retirement age of 65. But, an experienced Orange County spousal support attorney needs to examine all your income, including passive income, to see if modification is possible for your particular situation.
Also, there is an early retirement qualification for firefighters and state peace officers. The retirement is at age 55, firefighters or state peace officers can qualify for modifying or terminating spousal support. (See the case of Marriage of Shimkus (2016) 244 Cal.App.4th 1262.)
Also increase in income for the recipient or a decrease in their expenses can meet the changed circumstance standard. “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.” (Family Code section 4323(a).)
Once you past the threshold of changed circumstances, the court has to then evaluate Family Code section 4320 to decide whether to modify or terminate spousal support, just as it must when ordering the initial permanent spousal support order. (See the case of Marriage of Shimkus (2016) 244 Cal.App.4th 1262.).
The 4320 factors are as follows:
(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
(1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.
(2) The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
(b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.
(c) 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.
(d) The needs of each party based on the standard of living established during the marriage.
(e) The obligations and assets, including the separate property, of each party.
(f) The duration of the marriage.
(g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
(h) The age and health of the parties.
(i) Documented evidence, including a plea of nolo contendere, of any history of domestic violence, as defined in Section 6211, between the parties or perpetrated by either party against either party’s child, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.
(j) The immediate and specific tax consequences to each party.
(k) The balance of the hardships to each party.
(l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a “reasonable period of time” for purposes of this section generally shall be 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 lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.
(m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4324.5 or 4325.
(n) Any other factors the court determines are just and equitable.
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Orange, CA 92868