It has been 3 years since your divorce has been finalized by way of Entry of Judgment, and you've been consistently paying spousal support (or as others like to call it, alimony). You've been married for 12 years, separated for 5 years, and have 1 child that is now 16 years old. The ex-spouse receiving support is now earning double the income he/she earned at the time of Entry of Judgment. The marital standard of living is specified in the Judgment as lower middle class.
Your request is now to either terminate spousal support or reduce spousal support to $0.00. What is the difference?
But first, we need to look at 3 important factors:
1) LENGTH OF MARRIAGE DETERMINES LENGTH OF SPOUSAL SUPPORT
Family Code Section 4336(b) defines a marriage of long duration as one of 10 years or more. Here, a marriage of 12 years is more than 10 years; this is a marriage of long duration.
Family Code Section 4336(a) states that a court keeps its authority to award spousal spousal indefinitely. The only way for the Court to terminate its authority is if the Court finds that the 16 factors listed under Family Code Section 4320 heavily weighs in your favor.
A marriage of over 10 years is VERY DIFFICULT to terminate spousal support.
2) MARITAL STANDARD OF LIVING DETERMINES LENGTH OF SPOUSAL SUPPORT
One the most important steps you can take is to specify the marital standard of living in your Judgment. Without it, the Court will now figure it out on its own during your request to change spousal support.
Here, the marital standard of living is lower middle class. The Court must order spousal support based on the lower middle class lifestyle. There is no guessing.
3) ADVISEMENT TO BECOME SELF-SUPPORTING DETERMINES LENGTH OF SPOUSAL SUPPORT
You may have heard the term, Gavron warning, in a divorce. This stems from a 1988 case called, In Re Marriage of Gavron, where the appellate court provides that a spouse must make reasonable efforts to become self-supporting. The Judgment must state that a party must become self-supporting in order for the Court to later entertain the idea of terminating spousal support.
Here, we know that the ex-spouse receiving support earns double her income on a lower middle class marital standard of living. It is safe to say that the ex-spouse is self-supporting.
TERMINATE THE COURT'S AUTHORITY TO ORDER SPOUSAL SUPPORT
The Court must consider the Family Code Section 4320 factors (remember, there are 16 of them) in order to terminate support, which entails the above 3 important factors. One of the biggest concerns here is that we have a marriage of 12 years. A Court will have a difficult time terminating its authority over spousal support since the spouses have been separated for only 5 years and have a 16 year old. Instead, the Court will be more comfortable reducing spouse support to $0.00 instead. What's the difference?
REDUCING SPOUSAL SUPPORT TO $0.00
When a Court reduces spousal support to zero, it means that the paying spouse no longer needs to pay support. However, at any point in time, an ex-spouse may request to increase spousal support from $0.00 to a dollar amount consistent to their marital standard of living because he/she is no longer self-supporting.
In conclusion, if you are negotiating a Marital Settlement Agreement, it is important to try to negotiate that a marriage was less than 10 years (even if it is 9 years and 11 months), each party agrees to a Gavron advisement/warning, and that the marital standard of living is specified.
If you need assistance in negotiating a Marital Settlement Agreement or modifying spousal support, please contact Your Legal Warrior at 8587618661 TODAY!!!!
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