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.
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