Trying to Lower or Terminate Spousal Support
In order to reduce spousal support after a judgment, you must show the court that there has been a substantial change in circumstances since the last order was made regarding spousal support. It this showing is not made, the request will probably be denied. In fact, it must be denied. On the other hand, even if the showing of changed circumstances is made, the court does not have to grant the request to eliminate or lower spousal support. This reality was illustrated in the recent case of Marriage of Berman. In that case, the California Court of Appeal reaffirmed the principle that “[e]ven upon proof of a change of circumstances, ‘modification is not necessarily mandated given the court’s obligation to reconsider the statutory standard'”, which is outlined in Family Code section 4320. The Berman court continued, [t]he trial court has broad discretion in setting or modifying spousal support, and among other things may take ito account evidence of bad faith on the part of the supporting party in meeting his or her support obligations”. (But there is also a case, from 1998, that says at age 65, a party is no longer required to keep working just to pay spousal support.)
The Berman case is a good case to study. In this matter which arose in Los Angeles County, the husband was paying $4,000.00 a month in spousal support, based on a 2013 order. A couple of years later, the husband filed a request to terminate support because he had turned 65 and had transferred his business to his new wife without getting anything in return. The trial court, however, denied the request, finding that the transfer was basically a sham. The trial court found that the transfer “d[id] not look like a transfer in good faith”. So, the court found that there had been a change in circumstances but denied the request to terminate support anyway. The decision by the Court of Appeal to affirm the trial court was 3-0.
Putting aside Berman and the change in circumstances issue, there is another problem. Family Code section 3654 requires a statement of decision, upon request, for an order at a post judgment hearing that reduces or eliminates spousal support. On the other hand, if the court denies the request and spousal support remains the same, no statement of decision is required. This means the court, in denying a motion to change spousal support, can simply explain its decision by saying that the moving party failed to carry the burden of proof.
If the court grants the request to lower or eliminate spousal support, the effective date of the lower support or the zero support order is that date the request is filed with the court or some later date. For example, X has a good reason to lower spousal support and the court ultimately agrees. But X waits two years before filing the request. Three months after filing the request, the court grants X’s request. For the two years that X thought spousal support was too high, X did not pay spousal support. The recipient, “Y”, didn’t complain. Even if the court at the hearing, two years and three months later, agrees that X has been overpaying spousal support for years, the court cannot adjust spousal support other than the three months immediately preceding the hearing. Spousal support could be reduced to zero effective the date of filing, meaning there will be no spousal support due (in this example) for the three months immediately preceding the hearing, but X will still owe the full amount for the two years before filing, plus interest at ten percent per annum. This means that even if X wins, the lower support order won’t really go into effect for two years.
In deciding whether to seek a lowering of spousal support (or a termination of support), consider how much you are paying. Some spousal support amounts are so low that it is not worth doing anything about the obligation, especially since spousal support is tax deductible to the payor. If the support is substantial, see if you can get the other side to agree in writing to what you want. You may be able to accomplish in a written agreement filed with the court what a judge would not be allowed to do if the matter came before her or him. If none of this will work, consider the legal fees involved in trying to reduce spousal support and see if it’s worth it.
On the other hand, there are ways to make terminating spousal support easy. If you settle your case before judgment is entered, the agreement may provide that spousal support will end at a certain time, say, six years. This is more likely to happen if the marriage was less than ten years, because, based on the law, fewer skilled attorneys representing the recipient spouse would agree on a termination date if the marriage was over ten years.
Spousal support automatically ends on remarriage of the recipient spouse, unless there is a marital settlement agreement made into a judgment that says otherwise. Such an agreement is very rare, however, so the point is, remarriage usually does the trick.
And few judges think that spousal support should continue forever. At some point, enough is enough, but remember, you need those pesky “changes in circumstances” mentioned above.