California spousal support awards are often made on a “permanent” basis when a marriage lasted over 10 years, but the reason for the quotation marks is that “permanent” does not necessarily mean for the rest of one’s life. A better word might be “indefinite” and courts retain the power to terminate or at least modify the amount of spousal support payable.
When one party comes to court seeking a modification or termination of their spousal support obligation, the court will want to see whether there has been a significant “change of circumstances” since the last spousal support was made. A common question is whether a paying party’s retirement from working will justify ending spousal support. After all, if you’re not working anymore, why should you have to keep paying support to someone else?
It doesn’t quite work that way, though. Even if you are no longer working in your retirement, it is likely that you are still receiving income, and a court will consider that, but a court can also make a determination based on the post-retirement situations of you and your ex-spouse that support should be modified downwards or perhaps terminated altogether.
A Court Will Consider Retirement Income in Setting Post-Retirement Spousal Support
A paycheck or income from a business may cease when you retire, but most people will have at least one source of income following retirement, and a court will indeed consider that in setting spousal support, as well as considering any income streams for the supported spouse, among other things.
Post-retirement income that a court will consider includes, but is not necessarily limited to, social security income, pension income, investment income (dividends, interest payments, mandatory retirement distributions, rentals, etc.), and post-retirement business income.
While this income may be significantly less than what was earned pre-retirement, the bottom line is that a court can still consider this as income as available for spousal support. And again, this goes both ways, and the receiving spouse’s income will be considered as well, whether pre- or post-retirement income.
A Court May Well Nevertheless Modify or Terminate Spousal Support Post-Retirement
Because post-retirement income may well be less than the income that was available at the time the spousal support award was made, this can constitute the “change of circumstances” that a court will want to see to justify modifying downwards or terminating the spousal support obligation. For example, if you were earning $20,000 a month prior to retirement while paying $3,000 a month in spousal support, and now receive $5,000 a month in income post-retirement, you may have a strong case to make to the court of reducing or ending that support obligation.
Another factor to consider is that courts generally expect the supported spouse to take steps to become “self supporting” in the years after a divorce, and so a court can look at whether enough time has passed for the receiving spouse to have taken such steps. This is a fact-specific analysis depending on the situation; for instance, a court will probably place a higher expectation for becoming self supporting on a healthy spouse who is divorced at age 35 and has a professional degree than a spouse who was divorced at age 60 and had never worked outside of the home and is in poor health.
Pursuing a Modification or Termination of Spousal Support
A modification or termination action on spousal support in California is similar to the divorce itself, in that one party can file a request with the court, then discovery and negotiations can occur, and the issue can eventually be resolved in a court hearing before a judge involving evidence and witnesses. But as with a divorce, going to court is often the most expensive way of resolving the issue, and can involve delay and stress.
Parties seeking to modify or terminate a spousal support award are encouraged to pursue out-of-court options to resolve the issue, which can include negotiation between attorneys, working with a mediator, and/or working with a private judge.
Guidance on Your California Family Law Questions From a Westlake Village Family Law Attorney
If you would like to learn more about how our office can provide guidance on any California family law issues you are facing in Ventura County or Los Angeles County, contact the Zonder Family Law Group office today at (805) 777-7740 or (818) 877-0001, or schedule your strategy session using easy-to-use online form here.