Modifying Spousal Support At Retirement Age

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Under California law a long term marriage is one with a duration of ten years or more.  In a long term marriage there is a presumption that there will be an award of spousal support from the higher earner to the lower earner.  The follow-up presumption is that the longer the marriage the longer spousal support will be paid. In many long term marriage cases when there is a trial or settlement  a dollar amount will be ordered for spousal support, followed by language such as “spousal support to be paid until death of either party, remarriage of the party receiving spousal support, or further court order.”  It is also not uncommon for the party paying spousal support to want to have it eliminated or reduced as the years pass.  An unpublished opinion out of San Diego County sheds some light on the idea of reducing spousal support.

Robert and Jean divorced in 1998, after approximately 35 years of marriage.  Jean was 56, with high blood pressure and knee problems.  She was earning $2,080 per month.  Robert was earning $4,333 per month.  The agreement provided that Robert would pay spousal support of $800 per month.  In June, 2010 Robert went back to court seeking to have his spousal support obligation terminated.  He argued that he was 70 years old and retired.  That he had pension, Social Security and freelance income totaling $5,258 per month, and expenses totaling $6,507 per month.  Jean opposed the request.  She offered that she was 68 years old, had Social Security and employment income of $4,027 (not including spousal support), and monthly expenses totaling $3,620.

The trial court reduced spousal support from $800 per month to $500 per month. The trial court based its decision on, among other factors, the length of the parties’ marriage, the marital standard of living, Jean’s improved marketable skills, her potential for investment income from the proceeds of the sale of the marital home, Robert’s ability to pay spousal support, and the parties’ respective ages and health.

The Appellate Court affirms the decision of the trial court.

First the Court reiterates that “a supporting party’s retirement or cessation of gainful employment does not automatically compel a finding of a sufficient changed circumstance to warrant a decrease or termination of a support obligation. . . . Here, the trial court decided to substantially reduce, but not terminate, spousal support after considering the length of the parties’ marriage, the marital standard of living and, among other facts, that:  (1) Jean had improved her marketable skills and had the potential for some investment income, (2) Robert continued to work, intended to continue to work, and did not claim he was unable to pay spousal support, and (3) both parties were aged and had health issues, although Robert’s health issues were more significant.

The Court also reminds us that so long as the trial court applies each and every one of the factors in Family Code Section 4320, deference will be given to the discretion of the trial judge.

Spousal support is governed by statute.  [Citations.]  In ordering spousal support, the trial court must consider and weigh all of the circumstances enumerated in the statute, to the extent they are relevant to the case before it.  [Citations.]  The first of the enumerated circumstances, the marital standard of living, is relevant as a reference point against which the other statutory factors are to be weighed.  [Citations.]  The other statutory factors include:  contributions to the supporting spouse’s education, training, or career; the supporting spouse’s ability to pay; the needs of each party, based on the marital standard of living; the obligations and assets of each party; the duration of the marriage; the opportunity for employment without undue interference with the children’s interests; the age and health of the parties; tax consequences; the balance of hardships to the parties; the goal that the supported party be self-supporting within a reasonable period of time; and any other factors deemed just and equitable by the court.  ([Fam. Code,] § 4320, subds. (b)-(l).)

The take away from this case is that while it is possible to get spousal reduced after a long term marriage, it is a much greater challenge to get it terminated.  Please click here to read the original Judd opinion.

Please be sure to visit, the website for the law firm of Harding & Associates, for more information on California family law.

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