When does spousal support end in California? Well, as they say in the legal industry, it depends.

Normally, one way that it ends is if the person who is receiving the support remarries. But in settling a divorce case, the parties may agree that the remarriage of the person getting the support does not act as an automatic end to spousal support.

Now here’s a new question. Suppose the parties reach an agreement and write up the agreement on a form provided for divorce cases where you check each box that applies. And suppose further that when it comes to the various ways that spousal support ends, the box indicating that support ends upon the remarriage of the recipient is not checked, either intentionally or because the parties forgot to have it checked?

Then the support continues even when the receiving spouse remarries! At least that was the decision by the California Court of Appeal this week in a California divorce case called Marriage of Martin. In a 3-0 decision authored by Justice Art W. McKinster, the appeals court reversed a trial judge in a case that involved a husband (Craig) who had settled his divorce case by agreeing to pay his wife (Cynthia) $1,000.00 per month for four years. After the settlement, Cynthia, in fact, remarried and Craig filed a motion with the court asking for a refund for the money he continued to pay to Cynthia after her marriage, unaware that she had “retied” the knot.

Craig won the motion, and got an order for a $27,000.00 refund plus $2,700.00 in attorney fees as a sanction. But the problem was that in the paperwork submitted to the court at the time of the divorce, which provided that spousal support would run from October 1, 2013 through August 1, 2017, there was also a preprinted provision that said “Spousal support shall terminate upon the death of either party or the remarriage of the supported party, or further order of the court, whichever occurs first”. But the box next to the box was not checked.

Justice McKinster, who was joined by Justices Carol D. Codrington and Michael J. Raphael, agreed with the trial court that remarriage normally ends support. This is because of Family code section 4337, which provides: “[e]xcept as otherwise agreed by the parties in writing, the obligation of a party under an order for the support of the other party terminates upon the death of either party or the remarriage of the other party”. But the Court of Appeal reasoned that by not checking the box on the form, the parties had, in effect, agreed in writing to ignore the effect of Cynthia’s remarriage. In the words of the justices, “we conclude that husband and wife expressed their agreement to waive the section 4337 termination provision by choosing not to check the applicable box on form SB-12035″. The court added “section 4337 does not suggest that any greater specificity is required”.

The Court of Appeal’s reasoning that the failure to check the box was a deliberate decision to allow spousal support to continue even if Cynthia remarried seems like a stretch. According to the factual background of the case, neither party had an attorney at the time of the divorce. The parties had been married for eight years, and, according to Cynthia’s testimony at the time of the motion, “‘when we met with the man who did the paperwork, that’s what he said, that I would receive the money for half the years of the time that we were married'”. But if the parties really intended for remarriage to have no effect, they could have handwritten in that provision –or better yet, used pleading paper rather than a government form. To simply leave the box unchecked was to take a risk that their decision, if that’s what is was, to ignore the effect of remarriage would not be noticed by a judge looking at the paperwork later on.

Either way, this case illustrates the problem with trying to handle a divorce case without an experienced California divorce attorney.

The good news for Craig is that support was supposed to end anyway on August 1, 2017, so although he does not get the $27,000.00 refund originally awarded to him, he does not owe anything from the time he filed the motion on March 1, 2017 until August 1, 2017, or after August 1, 2017.

Because the opinion was certified for publication, it is binding on all trial courts and attorneys in California.