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GAVRON WARNINGS and SPOUSAL Support - What Self-Represented Parties Should Know!

The Morrison Rule, Richmond Orders, and Gavron Warnings:
What Self-Represented Parties Ought Know About
Continuing Spousal Support Jurisdiction

Current trends among separating couples and in California family courts towards informal case disposition, especially as a result of the economy, mean that self-represented litigants must make themselves conversant with important legal concepts that can have long-reaching effects for them. One common issue involves a reservation of continuing court jurisdiction over spousal support and alimony orders.

Often people desiring an "amicable" or "cheap" divorce fail to seek out competent legal advice, or rely upon paralegals or non-lawyers to mediate their disputes. While it is true that these cases get processed and concluded, such advisors have a very limited understanding of downstream legal consequences - sometimes with catastrophic or unintended results for either party. A large percentage of couples understandably wish to avoid generating fees by consulting lawyers before they settle their cases, and so risk resolving their matters blindly.

Commonly one side is represented by an attorney and the other is not. The lawyer who represents one party facilitates the settlement dialogue between the two and drafts the agreements and stipulations the parties arrive at, filing them with the court. In many cases this works well, particularly with lawyers with a strong internal desire to be transparent. But keep in mind that lawyer ethics may require an attorney to withhold important information that the non-represented party might find helpful, where for instance that attorney's client so directs. A lawyer's first obligation is always to his or her client. That client may complain if the lawyer whom they hired to be their advocate suddenly spills all the beans by, for instance, offering information that wasn't asked for. If you rely on what your spouse's lawyer tells you (which rarely includes outright false information but might include not disclosing every nuance), you gamble that that lawyer indeed has a strong sense of fair play. At the Law Firm of Thurman Arnold we tell both sides in such situations what we really think.

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Where alimony or spousal support is relevant, one issue in settlement discussions that should be addressed is when spousal support jurisdiction terminates, if at all. Obviously it is in the supporting party's interest to minimize their financial exposure for paying spousal support, and termination of spousal support jurisdiction is a powerful tool that favors the supporting party. "Termination of spousal support jurisdiction" refers to situations where the parties agree in writing that at some point in time, or upon the occurrence of some event, the Court loses its power to modify, extend, or issue support orders.

As such, it is important for a divorce litigant, particularly a supported party, to understand how spousal support jurisdiction will affect their case, and to be familiar with the 'legalese' they may encounter when talking to opposing counsel, a judge, or even their own lawyer. I want to introduce you to these themes: spousal support jurisdiction termination, the so-called 'Morrison rule', 'Richmond orders', and the effect of a 'Gavron warning'.

Unlike with child support orders (where the court retains jurisdiction to modify orders throughout a child's minority), courts do not necessarily have the same kind of automatic continuing jurisdiction for reviewing spousal support orders. You can't bargain away your child's right to be supported, or your obligation to support that child (although the parties can usually agree on amounts without court interference), but you can do almost anything lawful that you wish affecting spousal support by mutual agreement. Continuing jurisdiction over spousal support, or when support terminates, often is negotiated by the parties in exchange for some quid pro quo. Therefore, the first major principal to keep in mind for a supported party is that without an express reservation of jurisdiction written into a marital termination agreement, Stipulated Judgment, or otherwise on the record, the court cannot extend or reinstate spousal support.

If you are a supported spouse, the language you may wish to see is something like this: "Husband agrees to pay to Wife the sum of $X dollars per month as and for spousal support, payable one-half on the first and one-half on the fifteenth, until the death of either party, the remarriage of Wife, further written agreement of the parties, or further order of the Court." This is an open ended support provision, and if you are the supported spouse it is probably going to be acceptable to you. If you are the payor, however, you may want something more.

Second, the policy of the law is that the right to receive spousal support does not last forever. The "duration of support [should] be limited so that both parties, where possible, can develop their own lives, free from obligations to each other." Marriage of Prietsch & Calhoun (1987) 190 Cal.App.3d 645, 663. Family Code section 4320 is the key California statute governing spousal support. Subsection (l) of 4320 directs trial courts to consider this policy in ordering judgment spousal support in the following terms: "[it is] [t]he 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." [Emphasis added]. This subsection provides the text of what a Gavron Warning consists of. If you have heard that language from a Judge, you've received a Gavron Warning.

By the way, it is arguably only appropriate to give such warnings at the conclusion of the case (whether through settlement or otherwise), and not at the temporary spousal support phase - i.e., not at your first hearing for support. But if you are the payor spouse, you should urge that it be given nonetheless.

California's Family Code establishes a rebuttable presumption that a marriage of 10 years or more, calculated from the date of marriage to the date of separation, is a marriage of "long duration" for purposes of retaining spousal jurisdiction. Fam.C. § 4336(b). Shorter marriages may also be considered 'lengthy' by a court upon competent evidence based upon the parties' circumstances (i.e., 10 years is not a fixed finish line), but they do not have the benefit of the presumption in 4336(b). This might be true where, for instance, the supported spouse is gravely ill, or for other reasons. Pre-marriage cohabitation time with the other party does not count, and separation periods followed by reconciliation generally will not be considered by a court as counting against the 10 year period.

The Morrison Rule

The third major principal to keep in mind is the Morrison rule. In the context of lengthy marriages, a court's failure to expressly reserve jurisdiction to extend future support is an appealable abuse of discretion, unless the record clearly indicates the supported spouse will be able to adequately meet his or her financial needs at the date set for expiration of the order. Marriage of Morrison(1978) 20 Cal.3d 437, 453. This rule is now codified in Fam. C. § 4336(a), which provides: "Except upon written agreement of the parties to the contrary or a court order terminating spousal support, the court retains jurisdiction indefinitely in a proceeding for dissolution of marriage or for legal gal separation of the parties where the marriage is of long duration." Because of the Morrison rule and the supporting party's financial self-interest, the supporting party will usually push the payee spouse for an agreement, or push the court to make a finding, that spousal support jurisdiction be terminated at some point in time in virtually every divorce case. The supported spouse should try to avoid such agreement or order unless some substantial bargained for benefit justifies contrary action. But because of policy reasons described below, it may nevertheless be impossible for a supported spouse to avoid an order terminating spousal support jurisdiction at some point in the future, particularly with marriages of less than 10 years involving people in the first half of life.

The court's statutory duty under 4336(a) to retain spousal support jurisdiction for "lengthy" marriages does not eliminate the court's discretion to create a date certain for termination of spousal support itself at trial or in a post-judgment OSC on a showing of changed and now present circumstances of either of the parties (e.g. the supported spouse is now fully self-supporting), subject to Fam. C. § 4320 spousal support amount determination factors. A supporting party will virtually always want a date certain to terminate a spousal support obligation itself without necessarily terminating the court's jurisdiction over the issue.

Richmond Orders (Contingent Events and Step-Downs)

In litigation involving lengthy marriages in excess of 10 years, one tactic a supporting spouse may present is for an order is to have a contingent spousal support jurisdiction termination date, also known as a Richmond order. In essence, an Richmond order is an order terminating spousal support jurisdiction on a specified date unless, before the specified date, the supported spouse shows the court good cause to modify the amount and/or duration. These sorts of orders are more common where a payee spouse is receiving education, or is being trained for a career.

When a judge can determine from the evidence that the supported spouse is capable of being self-supporting (e.g. because the supported spouse is still of suitable employment and/or training age, has an education or the opportunity to obtain one, is healthy, etc.) such an order is justifiable in that, unlike an open-ended order on spousal support jurisdiction, a Richmond order does not encourage delay in seeking suitable education, training, and employment. As such a Richmond order accommodates the policy goal of self-support, and that both spouses be able to get on with their lives, free from obligations to each other. Marriage of Richmond(1980) 105 Cal.App.3d 352, 356. Because of this practical policy argument, courts may consider and grant Richmond order (i.e. a contingent future spousal support jurisdiction termination order).

The effect of a Richmond order is: 1) to put each spouse on notice that the supported spouse has a specified period of time reasonably based on the circumstances to become self-supporting (or show the court good reason(s) why s/he is not self-supporting) after which the supporting spousal support itself, as well as jurisdiction to modify or reinstate spousal support, will cease, and 2) to shift the burden of production of evidence from the supporting spouse to the supported spouse to show why spousal support should continue.

If actions or events contemplated by the parties and/or court in a Richmond situation do not occur (i.e., for good reason the supported spouse fails to complete anticipated education or training, or is unable to find adequate employment, through no fault on their part), the supported spouse may, prior to the termination date file a motion to modify the original order as to amount and/or duration. Richmond orders effectively place the burden of extending support on the supported spouse instead of the supporting spouse - who is presumably the one "who is most able to exercise the control necessary to meet the expectations the trial judge had in making the order."Marriage of Prietsch & Calhoun (1987) 190 Cal.App.3d 645, 666.

Under certain facts there may exist a strong judicial preference for a Richmond order. Courts consider Richmond orders "most appropriate" for most divorces, and will generally grant them unless the circumstances are such that: 1) no spousal support is awarded at all because of the relative wealth and/or income of the parties, 2) spousal support is for a fixed short period following a short marriage, 3) the supported spouse is truly incapable of becoming self-supporting (i.e. health or age issues prevent working and education), or 4) the marriage is of the most lengthy of marriages. Marriage of Stallworth (1987) 192 CA3d 742, 755. However, having said that they are fairly rare in practice.

Gavron Warnings

gavron and termination of spousal support payments If the intent of the parties (by agreement) or the judge (by order) is to expect the supported spouse to become self-sufficient (and therefore step-down or terminate spousal support) on a date certain (and thereby shift the burden to the supported spouse to give a judge good reason for a support extension) the supported spouse must have been put on notice of that expectation under the Richmond order. Marriage of Gavron (1988) 203 Cal.App.3d 705, 711-712.

An express or formal warning out of a judge's mouth to the supported spouse concerning the consequences of a Richmond order is not necessarily required, but is always the best practice to request. The prerequisite awareness described in Gavron of the court's expectation of the supported spouse's future self-sufficiency may come from, for example, an explicit statement in the support order, a motion and ensuing order that the supported party submit to a vocational training examination, a stipulation addressing the spouse's ability to obtain future employment, or even a justified assumption of continued future employment based on the spouse's employment at the time the order setting a reasonable termination date was made.

It is generally our opinion that the bottom line for most supported spouses is that they should, upon receiving spousal support and in the absence of extraordinary circumstances, find some employment that he/she likes and that maximizes their income earning potential. If that income is for minimum wage only, it is better that the supported spouse takes the employment and works as much as possible as opposed to not taking any employment at all. If a supported party needs further economic aid, when they come to court able to demonstrate his or her good faith and best efforts to be self-supporting, he/she will have a much better chance of success in extending support that otherwise might terminate.

Alternatively, if they don't, the payor may find that the obligation ends....


Michael C. Peterson, Esq.
Law Firm of Thurman W. Arnold