One very important and challenging issue in divorce is figuring out how the family finances will be handled once the couple has separated. When children are involved the management of the children’s needs is addressed through child support. Whether or not there are children the financial needs of either spouse is also addressed through spousal support. The intention behind spousal support is to allow both spouses to live at a standard similar to that enjoyed during the marriage. That is usually a difficult proposition given that with separation comes the added expenses from now having to manage the finances of two households while not necessarily having any additional income to do so. Today’s blog addresses how long a spouse might be expected to pay and/or receive spousal support following divorce. There are a number of factors that impact duration of spousal support including, but not limited to, the length of the marriage, remarriage, cohabitation, changes in circumstances and reasonable expectation for supported spouses to make efforts to get to a place where they can support themselves. I address these concepts further below.
Remarriage. The most common ending point for spousal support is upon the remarriage of the spouse receiving the support. Spousal support ends by operation of law upon remarriage. This does not apply to the remarriage of the paying spouse. When the remarriage occurs the Court’s jurisdiction over spousal support terminates for that spouse and even if there’s a subsequent divorce the Court will no longer have the ability to make a further support order for that spouse.
Short Term Marriage and Rule of Thumb. When the issue of spousal support is addressed one consideration impacting duration of support is how long the marriage was. The Court characterizes a marriage as either a short term or long term marriage. While there are exceptions, the general rule is that a marriage that is under ten years is considered a short term marriage and a marriage over ten years is considered a long term marriage. This is an important distinction as there is a rule of thumb that spousal support for a short term marriage will have a termination date that is one-half the length of the marriage. If a couple is married for eight years their marriage is considered a short term marriage and the spousal support would end after four years. For marriages that are over ten years and considered long term marriages the rule of thumb for duration goes out the window and typically there is not a date certain end date for such support. The Court may set an end date in the future, but typically will not include an end date initially. The Court has the ability to determine that a marriage that is under 10 years should be treated as a long term marriage and a marriage that is over 10 years should be treated as a short term marriage. Couples can agree to set end dates on long term marriage and also agree to have support payable for a longer period of time then half the length of the marriage.
Cohabitation. So what happens when the spouse who is receiving support enters into another relationship and begins living with their new partner. While remarriage is an automatic terminating event for spousal support, cohabitation is not. Instead, cohabitation gives rise to a presumption that the cohabiting spouse has a reduced need for support. The Court will then consider evidence that either the cohabitation should either reduce or end the support, or that the cohabitation does not impact the financial circumstances of the supported spouse so that the presumption of reduced need is overcome and no change to the support is warranted.
Change of Circumstances. After a support order is made, the Court reserves the ability to adjust the support amount and duration in the event circumstances change. A change in the financial circumstances of either of the spouses can result in an increase to the support, a decrease to the support, or can result in spousal support ending. Some typical changes that might occur include a spouse getting a raise, losing their job, retiring, landing a better job, returning to work, taking on a second job, etc. Maintaining the ability to change the support amount places the Court in a position to adjust the support amount and the duration of the support given subsequent events that are not foreseen when the support is originally addressed. A spouse who loses a job can seek an adjustment to the support amount for a short period of time as they seek to obtain replacement employment.
The Gavron Warning. The Court has a long term expectation that both spouses share the responsibility of assuring that the financial needs of the family are met after divorce. During marriage couples will often make arrangements for one spouse to take a larger role in providing financially for the family while the other spouse might be tending to the needs of the children or the household. While the Court will provide for a period of transition after separation, there is typically an expectation that the non-working or under-employed spouse take steps to return to work or move to full time employment. At some point in time the Court may issue what is typically referred to as a “Gavron Warning” which provides the parties the following admonishment:
“NOTICE: 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 may be one of the factors considered by the court as a basis for modifying or terminating spousal or partner support.”
If a party is not meeting the expectation to obtain employment commensurate with their skills and experience it can result in the Court imputing that party with the ability to earn at that level and adjusting the support accordingly or terminating support altogether. If a party is earning at the level they are able to but are still needing assistance from the other party, support will likely continue accordingly until there are further changes to the circumstances of the party.
Retirement. Retirement is one of the previously mentioned changes of circumstances that will typically warrant a modification to support primarily for two reasons. First, at time of retirement the retiring party will have a decrease in their income. Second, the other spouse will often begin receiving their portion of the retirement income of the other spouse which often serves to replace the spousal support being received. Upon retirement support does not automatically adjust and the retiring spouse must seek a modification to the support from the Court or otherwise enter into an agreement to modify. Issues can also arise if a party elects to retire early as the Court has the ability to impute the early retiring spouse with the ability to earn at the level they were at before retirement in which case they will not order a reduction to the support amount based upon the decision to retire early.
One Size Does not fit all. The issue of spousal support has a number of variables which make it a challenging issue to tackle in divorce. These variables impact how much support will be paid as well as how long support will last. How do we make sure that each spouse has the ability to manage their finances moving forward while maintaining reasonable expectations for each spouse to contribute to meeting the needs and to allow both parties to move forward in their independent lives after divorce. The decisions made on these important issues have a lasting impact in the months and years after the divorce has been completed. Consider mediation to help with exploring a thoughtful and holistic approach to tackling these challenging and important issues.