California Family Law Attorney
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June 11, 2010
  What should I know if I want to LIMIT or TERMINATE SPOUSAL SUPPORT in the future?
Posted By Thurman Arnold

Q. My wife and I were married for 14 years. We have two children, aged 11 and 13. We are in our early 40's. My wife has a college degree, but quit working shortly before our first child was born. I am a doctor, and she was a nurse. Our divorce is not final. I think she should be able to support herself once she gets some updated training, although I don't object to supporting our children. She says she won't work until until our youngest child finishes high school. What should I ask the judge to do and what should I expect to limit my spousal support exposure?

How Terminate Spousal Support?

There are a number of things you need to know.

First, you have a long term marriage within the meaning of Family Code section 4336. Start with the expectation that you will be paying alimony for at least half the length of the marriage, assuming your relative income circumstances do not change.

Second, Family Code section 4320 sets forth the most important factors that a court is required to consider in issuing a spousal support award; it is also the decisive section for determining whether spousal support should be modified, reduced, or terminated in the future. As to later modifications, this means that whatever the court decides as to the 4320 factors (or depending upon what facts are recited in your Marital Termination Agreement) may have a huge impact on how much you pay and for how long. The 4320 factors only come into play when a final judgment enters: Although courts are supposed to consider them in dealing with temporary spousal support issues, they typically do not.

Third, it is essential that you convince the Court to give your former spouse a Gavron warning. I have separately blogged this concept. In essence its effect is to give a supported spouse something of a free pass to rehabilitate themselves and enter the work force until and unless they've been given advance notice of that expectation.. If you settle your case without going to trial, as I sincerely hope you do, make sure that a Gavron Admonition is included in your settlement agreement. It starts the clock ticking on your former wife's obligation to become self-sufficient. However, you need to realize that her ability to do so will be impacted by her child rearing responsibilities to whatever extent they exist, and most courts will consider this. It becomes less relevant with older children. Given the length of your marriage (14 years) your youngest child will be finishing high school right about the time that you reach half the length of the marriage.

Fourth, consider trying to get what is called a Richmond Order. Essentially this is an order or an agreement to terminate spousal support jurisdiction on a specified date unless, prior to the fixed termination date, the supported spouse files a motion showing good cause to modify the amount of support or its duration. Unlike most orders which are open-ended, a Richmond Order discourages delay and supports the goal of California that an ex-spouse receive support only so long as is reasonably necessary to get back on their own two feet. They are generally not appropriate in extremely lengthy marriages, or in situations where health or age makes it unreasonable to believe the other party can become self-supporting.

Age is a factor in your case because there is still time for your Wife to develop financial independence.

The effect of the Richmond Order is to place the burden upon the supported spouse to justify continuing support because of unforeseen future events. Most judges prefer Richmond orders, but you won't get it unless you request it. Attorneys representing supported spouses are less likely to agree to them in Marital Settlement Agreements at first blush. There may be good reasons, however, that be persuasive if you persevere.

Fifth, consider a request for step down spousal support orders where support is reduced in increments into the future; this may make perfect sense depending upon the length of marriage, whether there are children, and the supported spouse's age.

Sixth, consider a Family Code section 4331 Vocational Training Examination. Even if the Court concludes that it is not reasonable for your wife to work now, this may create an important benchmark which will be useful to you in the future. Downstream if she does not obtain employment she arguably might have, the Court may be convinced it should impute income to her that might have otherwise earned.

At this point in the proceedings you are setting the stage for a future reduction. That requires smart advance preparation. Find a competent spousal support attorney in your area!

By the way, this is exactly why you should want mediation rather than a court judgment. IMHO. Mediation takes the future into consideration, and creates a safe container for the parties to talk about it!

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Thurman Arnold III

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June 11, 2010
  What is a GAVRON WARNING and how does it affect my right to SPOUSAL SUPPORT?
Posted By Thurman Arnold

Q. I was at our first court hearing last week requesting child and spousal support. My husband's attorney asked the judge to give me a "Gavron Warning". The judge said he would consider at a future hearing, but I don't understand what this meant. The judge did order my husband to pay child and spousal support. What do I do if this comes up again?

What Are Gavron Warnings?

Gavron warnings deal with the question of when a supported spouse may be expected to become partially or totally self-sufficient, so that they can no longer be expected to rely on a former spouse for economic support. At some point the entitlement to be supported usually ends.

Where the court intends that party to become self-supporting by a given date, it generally must first give that person advance warning. Marriage of Gavron (1988) 203 Cal.App.3d 705 is the case which first articulated this policy. This advance notice is now called the Gavron Warning. It does not impact child support.

This represents a trend in the law away from a rule which once entitled a spouse (typically women) to lifelong alimony to a right to receive spousal support for only so long as necessary to become self-supporting. It applies equally to men and women, and to domestic partners. There is no question that this trend has gained legislative acceptance, and in 2000 Family Code section 4330 was enacted. It provides in part:

"(b) When making an order for spousal support, the court may advise the recipient of support that he or she should make reasonable efforts to assist in providing for his or her support needs, taking into account the particular circumstances considered by the court pursuant to Section 4320, unless, in the case of a marriage of long duration as provided for in Section 4336, the court decides this warning is inadvisable."

Note that this statute states the court "may advise" the support recipient to make reasonable efforts to assist in supporting themselves. This means it is up to a judge to decide at any given stage in any given case when and whether or not to give the warning. One of the factors that the court must consider is the length of the marriage.

Gavron Warnings in Long Term Marriages

Family Code section 4336 defines a marriage of long duration as 10 years or more. There are cases that have decided that this 10 year rule is not inflexible, and that marriages of less than ten years may qualify for this protection where the facts warrant it (i.e., disability, domestic violence, the parties' respective ages).

The effect of the Gavron decision is to require that fair advance notice in fact be given before a court can properly terminate or reduce spousal support as of a specified future date. The idea is that a supported spouse should not be punished for failing to meet the court's unrevealed expectation that they would become self-sufficient - absent this required advance notice it is judicial error to abruptly terminate an alimony order because of a failure to make good faith efforts to become self-supporting.

However, that notice need not be express - although it usually is. For instance, your husband's attorney was competently (but aggressively) representing your husband by asking the court early on to give you an express warning. He or she will probably ask again at every future hearing until the judge finally does give you the Gavron admonition. That warning need not be in any magic formula: It merely needs to clearly tell the supported spouse that they are expected to become self-supporting. The classic language is contained in the FL-180 Judgment of Annulment, Legal Separation or Dissolution form and reads: "It is the goal of this state that each party will make reasonable good faith efforts to become self supporting as provided for in Family Code section 4320. The failure to make reasonable good faith efforts maybe one of the factors considered by the court as a basis for modifying or terminating spousal or partner support."

How About Gavron Admonitions in Short Marriages?

Except in short marriages of less than 10 years, most judges will not issue Gavron warnings early on because during the early divorce process it is not reasonable that suddenly a homemaker should become self-supporting. At the time a Judgment of Dissolution or Legal Separation is entered, however, and possibly except in cases of very lengthy marriages lasting 20 years or more (or where the parties are too old to be expected to retrain), most judges will give the Gavron Warning.

Additionally, Gavron language is often found in Marital Termination Agreements (also known as MSA's for 'marital settlement agreements'). Whether the language is included in the settlement agreements is a matter of negotiation between the parties. As a recipient you want to resist it. As a payor spouse, you want to insist upon it. The longer the marriage, the less reasonable it is to include such language. For instance, when I represent women over the age of 50 with marriages in excess of 10-15 years, I counsel my client not to permit it - however, the reality is that by the end of a case, except perhaps in very long marriages, judges are going to give the admonition. On the other hand, if I am representing the high earner spouse, I always argue for its inclusion. This is one of those subtle areas where having the right attorney for you can make a huge difference in your future security. However, as you may have noted above the language has become so standard now that it is included in the FL-180 Judgment form and be used for or against you even if you never read that piece of paper (one you don't sign).

In answer to your question what to do when this comes up again, urge the court that this is too soon and too early, and not reasonable given that you have devoted your married life to child-rearing and to helping your client develop the career that you both once believed would support the family until retirement and ultimately death.

This is just an overview of the Gavron admonition. Visit us here for more information.

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Author: T.W. Arnold III

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