What is your exit strategy for ending spousal support for a marriage of significant duration?
Family law practitioners take pride in resolving dissolution cases with professionalism and with care. The high degree of quality that we strive for in all our representations is often balanced against our clients’ goal of ending the marriage with rapid speed and minimizing stress, angst and uncertainty.
An issue that is sometimes overlooked in midst of heated and dissolutions are the financial impact of the Martial Settlement Agreement on the supporting spouse’s future, and future relationships.
In drafting the Martial Settlement Agreement, all attorneys should consider the life of their clients beyond the divorce. What are the long-term implications for spousal support for the supporting spouse? Do we realize that in all probability the supporting spouse will have a new mate? Will your client be saddled with a long spousal support sentence without parole? Does a long term marriage mean a life time annuity for the supporting spouse? Is there an end? Does the Marriage of Morrison stand for all “Marriage of significant duration?” Is death the only end to support?
As attorneys, we are our advocates and legal counselors to our clients. We have a duty a specific duty when representing the supporting spouse to not to rush to an expedient settlement and to ensure to protect against adverse financial impact on our clients’ future. Counsel should consider if the Martial Settlement Agreement offers an exit strategy that permits future modification and allows for termination in appropriate circumstances. If these issues are not considered, your client could be stuck providing his or her former spouse with a life long annuity in the terms and conditions of the Marital Settlement Agreement or the order of the trial Court.
From your client’s perspective and from a professional responsibility viewpoint, it is good to know that there is an exit.
I. LEGAL BACKGROUND
A. Long Term Support in California
California Family Code Section 4336 (a) states that, unless by agreement of the parties, the court shall retain jurisdiction over spousal support of marriages of long duration. Ca. Fam Code section 4336 (b) defines a marriage of long duration as one of greater than 10 years. West’s Ann. Ca. Fam. Code section 4336 (2007). As attorney’s we must recognize that unless a possible end to support is included in the Martial Settlement Agreement.
B. The Morrison Whammy.
The1978 California Supreme Court ruling in the Marriage of Morrison, has had a significant impact on spousal support awards over the past thirty years. The court interpreted the Family Law Act to mean that courts should be encouraged to maintain jurisdiction on spousal support. Marriage of Morrison, 20 Cal. 3d 437, PP (1978). The court clarified several appellate court decisions that had terminated support after a fixed term rather than considering the circumstances of the parties. The Court reasoned there was a strong public policy in favor of protecting supported spouses in long-term marriages who were unable to become self-sufficient within a fixed term set by the court “despite her greatest efforts to enter the job market.” Id. at 452.
Under our Family Code, most of us advise our clients typically fully ensconced with the Supremes ruling in Morrison that the trial court has the discretion to award long term or “permanent spousal support” for marriages of ten years in duration. We have all encountered a session in which we say “Too bad, your marriage was not less than ten years. Less than ten years, you are out in five.” Is this sounding like parole for the fortunate few who had the sense to get out before the bewitching hour?
GAVRON WARNING AND SELF-SUFFICIENY – a myth or reality In re Marriage of Gavron, 203 Cal. App.3d 705 (2d Dist.1988).
In our collective experience, we have all encountered an initial client conference with perhaps with former client or new client and his or her new life partner. They have been married for 3 or 4 years and have come to you about “their long term spousal support problem. Typically, your “client” as the payor is quiet and patiently listens as a “Sad Sack” to a litany of tale of woes listed in exact detail about writing that monthly check to her husband former marital partner. “it’s just not fair!” We can’t buy a home? We are paying for her trip to Paris or Rio? Since we have been married, we have had no vacation. “What about botox for me? Am I chop liver? I have no problem with Harold paying child support for his kids- but where do I fit.? Brief review of the law
LENGTH OF MARRIAGE & TERMINATION DATE
PROPOSE LENGTH OF MARRIAGE SHOULD BE CUT OFF
COHABITATION- donï¿½t forget those new mates who are not merely just friends lovers no more?
CONTRIBUTIONS from the new mates- sharing expense, free housing/membership and access to private clubs
BENCHMARKING- guidance from the Court to plan your exit strategy?
New Cases guidance- Schmir, Geraci. Shaughnessy and Ackerman