Does Spousal Support Recipient Have to Work?
How long does spousal support (i.e., alimony) last? That’s a question I get a lot. And the answer is it could be a long time, especially if the marriage has been for over ten years. The law in other places may be different, but in California, a marriage that has lasted over ten years is usually considered a marriage of “long duration”. And in marriage of “long duration”, the spousal support order (assuming there is one), may not have a termination date when the judge issues the ruling.
In these longer marriages, it is common for a judgment or order to require spousal support to continue “until further court order, the payor’s death, the recipient’s death, the recipient’s remarriage, or further court order, whichever first occurs”. If you are the person who is paying support, therefore, you may have to rely on a change of circumstances (from when the initial order was made) to lower or even stop support. And if you are the person receiving support, you can rest easily knowing that support may not change unless you remarry, or until one of you passes away.
One way to show a change of circumstances is to show a change in income — either on the part of the payor, or on the part of the recipient. But what if the change is the result of deliberately quitting a job? In that case, the law tells us, courts may “impute” income, i.e., base support on what the person who quit could be making. But here’s another question to ponder. What if the person quits because of reaching retirement age?
There’s an answer to this question too. In 1998, the California Court of Appeal held that once a payor of spousal support reaches the age of 65, there’s really nothing the court may do about it. In other words, the court, in a case called Marriage of Reynolds, said that a person does not have to keep on working just to be able to pay spousal support once that person turns 65. (Of course, if the worker decides to keep on working [and some do], spousal support may not change. And lots of folks keep working after 65 because the money is good, they like what they’re doing, or retirement would leave them bored.)
Now, in the first published decision about family law issued by the California Court of Appeal in 2017, there appear to be answers to questions left unanswered by Reynolds. What if the person receiving spousal support decides to stop working because of age related reasons, or if that person was already retired and at retirement age at the time of the divorce? Does this affect spousal support, either during the initial divorce case or a hearing later on to modify the order?
These answers come in a case called Marriage of McClain. In McClain, the parties were married in 2001 and had separated in 2014. (So this was a long term marriage, although it barely cleared the ten year hurdle.) At this point, the husband was 68 and the wife was 66. Both had stopped working nearly ten years earlier, in 2001.
Once the case reached court, the husband was ordered to pay the wife $4,000.00 a month in spousal support. (Obviously, then, since the husband was retired, the husband must have had more assets or more in a pension than the wife.)
In any event, the husband argued that under Family Code section 4320, which is the statute that lists all the factors a court is supposed to consider when establishing or modifying spousal support, the wife had a duty to become self-supporting. Or, as the Court of Appeal put it, “Husband contends the family court erred by concluding Wife has the same right to retire as Husband. Husband asserts Wife, as the supported spouse, has an obligation to become self-supporting and therefore does not have a right to retire”.
The Court of Appeal, by a 3-0 vote, rejected the husband’s argument. (The trial judge also had ruled against husband.) The appeals court seemed to appreciate the argument, though, because section 4320 requires a court to look at the age (of both parties) on one hand, but the goal that the recipient spouse become self-supporting on the other. In other words, these two factors seemed to contradict one another. But writing for the other two members of the panel, Justice Douglas Miller found that the trial judge had considered both of these factors and therefore her decision had to be upheld.
Of course, on the surface, this outcome makes perfect sense. If the payor is allowed to retire, why shouldn’t the recipient? But the part of section 4320 that talks about the goal of being self-supporting applies to people receiving spousal support, not those who are paying it. So what seems obvious in the Reynolds case — the right to retire– wasn’t obvious in this case because recipients of spousal support, as a general rule, have a duty to become self-supporting. Just not when they are of retirement age and, in fact, have retired.
Keep in mind that not all cases involve spousal support, especially if the parties have similar incomes. And the rules are not exactly the same when it comes to setting an initial spousal support order (McClain) versus the situation in Reynolds, when the issue was modifying a spousal support order.
Also keep in mind that the rules for spousal support are different than the rules for child support.
As mentioned above, the McClain case is a “published” decision, which means it is binding precedent on trial judges throughout the state of California and may be cited by lawyers in future cases.
Also, as stated above, this new case only involves California law, and the Law Offices of Andy Cook does not practice law are not licensed in states other than California.