When you get a final spousal support judgment, you think there is no possible way it is going to be later modified. So why is your former spouse trying to modify it?
This can be particularly distressing following long, high-conflict divorces where the guarantee of spousal support might be the only thing you walk away with. You gave up your rights to the retirement plan. You gave up rights to the better car. But at least you got the spousal support. At least you know that, no matter what, a monthly check is coming your way that will permit you to support yourself and perhaps even put yourself in a position where you can become independent.
Below I will explain how to determine whether your support order is modifiable, and how to formulate a support order that cannot be modified.
Understanding the Difference Between Pre-Judgment, and Final Support Awards
First, you must understand this post applies only to final spousal support awards. Contrast this with what lawyers call “temporary” or “pendente lite” spousal support orders. Those orders are based on a guideline formulas and remain effective only until the divorce is finished. They can be modified at any time before judgment based merely on a change of circumstances, i.e., change of income or change of expenses.
Final support orders are those included in your divorce judgment, or a post-divorce judgment. The order is based not on a formula, but upon 14 different factors expressed in the family code. Because these orders are meant to be the final say in your divorce, they are typically more difficult to modify. But difficult is far from impossible.
Is There a Preference to Permit Modification of Spousal Support, or to Deny?
Under California Family Code section 3561(a), the court’s authority to modify or terminate a spousal support order is expressly made subject to the parties’ written agreement to the contrary. In other words, spousal support agreements can be modified, unless the parties agree otherwise.
The courts prefer nonmodifiable marital settlement agreements to include language that specifically precludes modification. Marriage of Hufford (1984) 152 CA3d 825, 834. In other words, unless the agreement itself precludes it, the court is likely to consider the spousal support order one that can be modified.
However, you will find many family court judges reluctant to modify a support award where it is clear the award was the basis of the judgment itself, even if it does not say it cannot be modified. In other words, where one party can show he or she relied on that support award to agree on other facets of the divorce, the judge might feel uncomfortable modifying it later. Also, if the judge finds the support award was in direct exchange for property, then the judge might be prevented from modifying the award.
How Do I Make Sure My Spousal Support Award Cannot Be Modified?
“No magic words are required to make such agreements nonmodifiable.” Marriage of Hufford (1984) 152 CA3d 825, 834. But there is language that can make it pretty clear for a later judge that the agreement cannot be modified. For example:
- “this agreement for spousal support cannot be modified.”
- “this agreement cannot be modified until …”
- “this is a non-modifiable agreement.”
- “this agreement cannot be modified simply on the basis that the income or expenses of the parties has changed to a substantial degree.”
- “parties understand that this support agreement is part of a larger divorce agreement and cannot be changed without changing the distribution of their community property.”
- “spousal support cannot be modified until 2020, remarriage of the supported party, or the death of either party, whichever occurs first. Spousal Support cannot be modified under any other circumstance.” [Do not leave out the last sentence.]
These are just examples of language you could use. Of course, each example is really derivative of the first one: “this agreement for spousal support cannot be modified.” While there are no “magic words,” those would be the most magical imaginable.
How Do I Know If I Already Have a Modifiable Support Order?
Read the language very clearly. The key language that makes a spousal support order modifiable is “… or upon court order,” as in, “This agreement cannot be modified until 2020, death of either party, remarriage of the supported party, or upon court order.” What that tells the court is that if the supporting party brings a motion to modify, it has the authority to modify via court order, so long as circumstances have changed.
If you see the words “or upon court order” in your spousal support award, you’re pretty much out of luck (or in luck if you’re looking to modify the award!).
One Last Trap to Avoid in Your Spousal Support Order
One trap you might fall into is agreeing to the following language: “Spouse 1 to pay Spouse 2 $1,000 per month in spousal support until December 31, 2016, death of either party, or the supported party’s remarriage.”
It would seem from this language that the support order is solid until one of these conditions are met. However, that is not how every judge will interpret it. Some judges will interpret this order to mean that spousal support is available until one of these conditions are met, but not guaranteed. In other words, the supporting spouse is on the hook until one of these events occur, unless they file to modify the order based on changed circumstances.
What Does it Take to Modify a Spousal Support Order?
Just because a spousal support order can be modified, does not mean it should be modified. To obtain modification of a spousal support order, the moving party must show a material change in circumstances since the order was made. (Marriage of Gavron (1988) 203 Cal.App.3d 705, 710.)
The word “material” here is key. The change in circumstances cannot be a mere raise in salary or slight reduction in expenses. It needs to be a material, or significant change, such that the parties are in very different positions than they were at the time the order was made.
Furthermore, the material change in circumstances cannot be one that was reasonably expected by the parties at the time they made the agreement. (See Marriage of Dietz (2009) 176 Cal.App.4th 387, 398.)
For example, if the supporting spouse wants to modify the order because you finished paying off the mortgage on your home on schedule (meaning you now have fewer monthly expenses), that would not be appropriate because it was to be expected that you would finish paying off the mortgage on time.
A Final Word on Non-Modifiable Spousal Support Awards
The upshot of all this is that you should really hire an attorney before signing off on a long-term spousal support award. While it may be difficult to afford one, remember the saying about being “a penny wise and pound foolish.” You might save a few bucks avoiding an attorney when you sign the agreement, but find yourself losing your spousal support altogether without one.