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.
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
Marriage of Stallworth (1987) 192 CA3d 742, 755. However, having said that they are fairly rare
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
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