Pre-Judgment Spousal Support
Pre-Judgment spousal support in known as temporary spousal support or pendente lite spousal support . Pre-judgment spousal support is based on a guideline formulas and remain effective only until the divorce is finalized. It can be modified at any time before judgment based merely on a change of circumstances, i.e., change of income, change of expenses, change in custody.
Pre-Judgment Spousal Support versus Permanent Spousal Support
Pre-Judgment spousal support differ from a permanent spousal support order which is included in your divorce judgment, or a post-divorce judgment order. Unlike a pre-judgment spousal support order, a permanent spousal support order is not based on a formula, but upon 14 different factors expressed in the family code. These orders are meant to be the final meaning that they difficult to modify.
Spousal Support Modification
Under California Family Code § 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. If you and your spouse have entered into an agreement regarding support it cannot be modified unless it is agreed upon.
Marriage Settlement Agreement
The courts prefer non-modifiable 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 at a later date. Also, if the judge finds the support award was in direct exchange for property, then the judge might be prevented from modifying the award.
Non-modifiable Spousal Support Awards
There is no exact language which can be included in a marriage settlement agreement to make spousal support non-modifiable. [Marriage of Hufford (1984) 152 CA3d 825, 83]. But there is language which could be included for a court to agree that the agreement cannot be modified. Examples of such wording include: 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; the 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 a certain date, remarriage of the supported party, or the death of either party, whichever occurs first; spousal support cannot be modified under any other circumstance.
Determining if Your Order for Spousal Support is Modifiable
The particular words that make a spousal support order modifiable are “upon court order.” Spousal support can be modified if your agreement contains these words. Using these words informs the court that if the supporting party brings a motion to modify, it has the authority to modify the spousal support order so long as there are a change in circumstances.
Distinguishing On-going Spousal Support with Spousal Support Availability
Your agreement could still be subject to the court’s interpretation should it contain language such as: “One spouse is to pay the other spouse a certain dollar amount per month in spousal support until a specific date, the death of either party, or the supported party’s remarriage.”
Although the language seems fairly clear that one spouse will be required to pay spousal support until one of the above-mentioned conditions are met, this is not always the case. 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 required to pay spousal support until one of these events occur, unless they file to modify the order based on changed circumstances.
Requirements to Modify a Spousal Support Order
To obtain a 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 key word is “material” which means that the change in circumstances cannot be a mere raise in salary or slight reduction in expenses. It needs to be a material, or a 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]. An example would be the supporting spouse request to modify based on the fact that a home mortgage was paid. This would not be appropriate because the expense was anticipated.
CALL NOW TO MAKE AN APPOINTMENT FOR A FREE CONSULTATION