What are the proper grounds to terminate alimony?
Terminating Alimony
Alimony termination is sometimes 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 order
A 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 that justifies a termination of spousal support
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.
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.
California Family Code 4324 also precludes that spouse from obtaining medical insurance, life insurance or other insurance benefits and payments from the spouse he or she attempted to murder. This does seem like a no-brainer but it is interesting nevertheless because it is yet another aspect of "fault" being a factor in divorce.
Domestic violence impact on spousal support
Though not as serious as attempted murder, a 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 any proceeding for dissolution of marriage where there is a criminal conviction for an act of domestic violence perpetrated by one spouse against the other spouse entered by the court within five years prior to the filing of the dissolution proceeding, or at any time thereafter, there shall be a rebuttable presumption affecting the burden of proof that any award of temporary or permanent spousal support to the abusive spouse otherwise awardable pursuant to the standards of this part should not be made.
(c) The rebuttable presumption created in this section may be rebutted by a preponderance of the evidence."
Learn more about the impact of domestic violence on spousal support.
What is preponderance of the evidence?
You may wonder what a "preponderance of the evidence" means.
Think of the scale and then think of the scale tipping to one side.
If the evidence tips the scale in favor of the spouse who perpetrated domestic violence in rebutting the presumption against him or her, then he or she has met that burden of proof.
Some people call a preponderance of the evidence a 51% standard.
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.
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.
How do you reduce spousal support in California?