Terminating Alimony in California
What are the proper grounds to terminate alimony?
Alimony termination is often the most contested issue ex-spouses face
Alimony termination is a polarizing issue. Spouses battle over the issue during divorce. More commonly, they fight over it after the divorce judgment.
Alimony termination laws significantly vary depending on the length of the marriage. Short term marriages usually result in easier termination. Long term marriages become more contested and sometimes very high conflict.
How does the court determine if it should terminate alimony? What must husbands and wives, including ex-husbands and ex-wives, know about this complex topic?
Alimony termination starts with a request for orderA common way to end spousal support is a formal request for order filed with the court that sets a court date. These are common in various circumstances including but not limited to the following.
1. A short-term marriage where the marriage has reached the one-half duration of the marriage
These typically arise after the judgment. For example, if the spouses were married for six years, the case concludes one year after separation, and the supporting spouse wants to end spousal support two years later, he or she would file a request for order.
Hopefully, that supporting spouse's lawyer was smart enough to place a termination clause in the judgment so a formal request for order would not be necessary.
However, it is not unusual for a spouse or his or her lawyer to forget to do that or have ambiguous language regarding termination.
2. Any other divorce that has reached a judgment and, after judgment, there is a material change in circumstances
This termination, in even more extreme cases, can include a termination of the court's power to ever award spousal support to the supported party.
The supporting party's loss or reduction in income, the supported party's increase in income, the supported party's failure to make reasonable efforts to become self-supporting and many other factors can contribute to such a post judgment request for order.
3. Termination agreements
Spouses are of course free to agree to terminate spousal support and even the court's power (called "jurisdiction") to award spousal support.
These types of agreements can be quite complex and an attorney's advice is important to ensure the agreement was drafted properly before submitting it to the court for signature.
Family Codes 4321 and 4322
Family Codes 4321 and 4322 also provide a basis to end spousal support or not award it.
Section 4321 states:
"In a judgment of dissolution of marriage or legal separation of the parties, the court may deny support to a party out of the separate property of the other party in any of the following circumstances:
(a) The party has separate property, or is earning the party's own livelihood, or there is community property or quasi-community property sufficient to give the party proper support.
(b) The custody of the children has been awarded to the other party, who is supporting them."
Section 4322 states:
"In an original or modification proceeding, where there are no children, and a party has or acquires a separate estate, including income from employment, sufficient for the party's proper support, no support shall be ordered or continued against the other party."
On the extreme end, for extreme conduct, a spouse convicted of attempted murder of the other spouse cannot seek spousal support. This includes temporary or permanent spousal support.
Domestic violence impact on spousal support
Though not as serious as attempted murder, a misdemeanor criminal conviction for domestic violence within five years prior to the divorce filing or any time after that also raises a rebuttable presumption that the perpetrating spouse should not receive temporary or permanent spousal support.
Family Code 4325 specifically states, in part (this is not the entire code section):
"(a) In a proceeding for dissolution of marriage where there is a criminal conviction for a domestic violence misdemeanor or a criminal conviction for a misdemeanor that results in a term of probation pursuant to Section 1203.097 of the Penal Code perpetrated by one spouse against the other spouse entered by the court within five years prior to the filing of the dissolution proceeding or during the course of the dissolution proceeding, there shall be a rebuttable presumption that the following shall apply:
(1) An award of spousal support to the convicted spouse from the injured spouse is prohibited.
(2) If economic circumstances warrant, the court shall order the attorney's fees and costs incurred by the parties to be paid from the community assets. The injured spouse shall not be required to pay any attorney's fees of the convicted spouse out of the injured spouse's separate property.
(3) At the request of the injured spouse, the date of separation, as defined in Section 70, shall be the date of the incident giving rise to the conviction, or earlier, if the court finds circumstances that justify an earlier date.
(b) The court may consider documented evidence of a convicted spouse's history as a victim of domestic violence, as defined in Section 6211, perpetrated by the other spouse, or any other factors the court deems just and equitable, as conditions for rebutting this presumption.
(c) The rebuttable presumption created in this section may be rebutted by a preponderance of the evidence.
(d) The court may determine, based on the facts of a particular case, that the injured spouse is entitled to up to 100 percent of the community property interest in the injured spouse's retirement and pension benefits. In determining whether and how to apportion the community property interest in the retirement and pension benefits of the injured spouse, the court shall consider all of the following factors:
(1) The misdemeanor domestic violence conviction, as well as documented evidence of other instances of domestic violence, as defined in Section 6211, between the parties or perpetrated by either party against either party's child, including, but not limited to, consideration of emotional distress resulting from domestic violence. The court shall also consider documented evidence of a convicted spouse's history as a victim of domestic violence, as defined in Section 6211, perpetrated by the other spouse.
(2) The duration of the marriage and when, based on documented evidence, incidents of domestic violence, as defined in Section 6211, occurred.
(3) The extent to which the convicted spouse's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the convicted spouse to devote time to domestic duties.
(4) The extent to which the convicted spouse contributed to the attainment of an education, training, a career position, or a license by the injured spouse.
(5) The balance of the hardships to each party.
(6) Any other factors the court determines are just and equitable..."
A felony conviction is much more severe. To learn more about this, check out our article on domestic violence on spousal support.
Cohabitation does not automatically terminate spousal support
Contrary to urban legend, unless the spouses agreed to termination as a result of cohabitation, cohabitation, by itself, does not end spousal support.
Cohabitation does however raise a presumption that the cohabitating spouse has a reduced need for spousal support. We wrote an informative guide on alimony and cohabitation in California. We encourage you to read it.
Family Code 4323 states:
"(a) (1) Except as otherwise agreed to by the parties in writing, there is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabiting with a nonmarital partner. Upon a determination that circumstances have changed, the court may modify or terminate the spousal support as provided for in Chapter 6 (commencing with Section 3650) of Part 1.
(2) Holding oneself out to be the spouse of the person with whom one is cohabiting is not necessary to constitute cohabitation as the term is used in this subdivision.
(b) The income of a supporting spouse's subsequent spouse or nonmarital partner shall not be considered when determining or modifying spousal support.
(c) Nothing in this section precludes later modification or termination of spousal support on proof of change of circumstances."
More reading on alimony
The following is additional reading on the subject of alimony. Get informed and contact us for an affordable strategy session about your situation.