Welcome to FreeDivorce.com.
Christina: This is Christina.
Ed: This is Ed. Today we are going to talk in more detail about how to modify an existing spousal support order, as well as how to modify other types of court orders that we did not discuss in our previous video.
Ed: Christina, are spousal support orders modifiable?
Christina: Spousal support orders are generally modifiable. However, it is possible to have a non-modifiable spousal support order. Spousal support orders can be made non-modifiable as to amount. They can be made non-modifiable as to duration. They can be made non-modifiable as to both amount and duration.
Ed: How do I know if my spousal support order is modifiable?
Christina: You have to read the existing spousal support order. Look for language that says something to the effect that the order is non-modifiable and/or language that states that the court will not have any jurisdiction to modify the amount or duration of spousal support. If you don’t see that kind of language, then the order is likely modifiable.
Ed: Why would someone want to modify an existing spousal support order?
Christina: There are all kinds of reasons why you may want to modify a spousal support order. The following are just a few examples:
Example #1: Your divorce judgment states husband will pay the wife $1,000 per month in spousal support. At the time of the divorce, the wife is unemployed or only working part-time. A year after the divorce, the wife obtains a full-time job. The amount of spousal support should be reduced because the wife’s need for support has been reduced due to the income from the new job.
Example #2: Your divorce judgment states husband will pay the wife $1,000 per month in spousal support. A year after the divorce, the wife gets a boyfriend and they start cohabiting. Family Code section 4323 states that there is a rebuttable presumption of a decreased need for spousal support if the supported party is cohabiting with a non-marital partner. As set forth in Family Code 4323, if the supported party is cohabiting with a non-marital partner, and the court determines that circumstances have changed, the court may modify or even terminate spousal support. If the wife had married her boyfriend instead of just cohabiting, the spousal support would have terminated automatically by law.
Ed: So, if I am paying my ex-wife spousal support and her boyfriend moves in with her, I can file a motion and ask the court to reduce or terminate my spousal support?
Christina: That’s correct.
Ed: Well, what if I have my girlfriend move in with me, or what if I remarry and my new wife earns a good income, will my spousal support obligation increase?
Christina: Probably not. Family Code section 4323 includes a provision that states that the income of the supporting spouse’s subsequent spouse or non-marital partner shall not be considered when determining or modifying spousal support.
Ed: What if at the time of our divorce, my wife is unemployed. She has job skills, job experience, and is in good health, but she just refuses to go out and get a job – what can I do?
Christina: What you can or can’t do may depend on whether or not your divorce judgment includes a Gavron Warning.
Ed: What’s a Gavron Warning?
Christina: I can explain it best with an example. Let’s say your divorce judgment states husband will pay the wife $1,000 per month in spousal support. At the time of the divorce, the wife is unemployed. The divorce judgment includes a “Gavron warning”. Family Code section 4320 is the statute that sets forth the various factors the court takes into consideration when making or modifying a spousal support order. Subsection “l” of Family Code 4320 states a goal is that the supported party be self-supporting within a reasonable period of time. A Gavron Warning is a language that may or may not be included in the divorce judgment. A Gavron warning advises the recipient of support that he or she should make reasonable efforts to assist in providing for his or her support needs and if they fail to make reasonable efforts, then this failure may be one of the factors the court takes into consideration when modifying or terminating spousal support. If the divorce judgment contained a Gavron warning and some years after the divorce, the wife has failed to make reasonable efforts to become self-supporting, then the husband may want to file a motion to reduce or terminate spousal support, including a request that the court imputes income to wife equal to the amount she would have been earning had she made reasonable efforts. If you used our “Marital Settlement Agreement” template to draft your divorce judgment, you would have seen in our spousal support optional paragraphs a Gavron Warning that you could have included in your divorce judgment.
Ed: What if I think the existing spousal support order should be modified and my ex-spouse is willing to stipulate the modification – is there a Judicial Council form I can use to set forth our stipulation?
Christina: There is no Judicial Council form that is specifically designed to enter into a stipulation to modify an existing spousal support order. You will need to draft a stipulation and order. You can use the “Stipulation and Order” template that is in our Templates Database to write your stipulation.
Ed: What if my ex-spouse and I can’t reach an agreement or stipulation to modify an existing spousal support order, what can I do?
Christina: If you and your ex-spouse cannot agree on a new spousal support arrangement, then you can file a motion with the court to modify the existing spousal support order using the FL-300. In another video, we discuss how to complete and file the FL-300.
Ed: Is a post-judgment motion to modify spousal support more difficult than a post-judgment motion to modify child support?
Christina: Yes. When we are talking about a “post-judgment” motion, we mean a motion that is filed with the court after the divorce judgment has been issued by the court. A post-judgment motion to modify child support can usually be handled in one short hearing. The judge uses the information from each party’s Income & Expense Declaration, runs a new child support calculation using a guideline child support calculator such as DissoMaster, and you walk out of court with a new child support number.
A post-judgment motion to modify spousal support is much more difficult because, as explained in our “Getting Educated” video on spousal support, the courts are prohibited from using support calculation software such as DissoMaster to determine the amount of “long term” spousal support. Support calculation software can be used to set temporary spousal support, but the court is not supposed to use such software to set the amount of spousal support for a divorce judgment or to modify the amount of spousal support that is part of a divorce judgment. Instead, a post-judgment motion to modify the amount of spousal support requires the court to consider all of the spousal support factors set forth in Family Code section 4320. A copy of Family Code section 4320 can be found in our Court Forms Database. It takes time for a court to conduct an evidentiary hearing on all of the Family Code 4320 factors. If you file a post-judgment motion to modify spousal support, don’t be surprised if the court requires multiple court appearances to deal with the motion. There may be an initial “short cause” hearing, followed by a settlement conference, and finally a “long cause” hearing.
Ed: Are other types of existing court orders modifiable besides child custody, child support, and spousal support orders?
Christina: Other types of orders set forth in your divorce judgment may be modifiable. It depends on the nature of the order. Was the order intended to permanently resolve particular issues regardless of any future changes in circumstances? If so, it is probably not a modifiable order. However, if the nature of the order is such that you and your spouse intended the order to be subject to change if there is a material change in circumstances, then the order may be modifiable. You have to consider the nature of the order you want to modify. For example, assume the divorce judgment awards your ex-spouse use and possession of the family home until the youngest child graduates from high school in five years, at which time the home is to be sold and the proceeds equally divided. This is an order that divides property and would normally not be modifiable. However, let’s assume that two years after the divorce, your ex-spouse is not making the mortgage payments and a foreclosure proceeding has been initiated by the bank. You could file a motion to modify the terms of the divorce judgment and request that the court issue a new order for an immediate sale of the home.
Ed: If I want to modify any type of court order, should I first see if my ex-spouse will stipulate to a modification and, if she will stipulate, I can draft a Stipulation & Order that we both sign and then file with the court, and if she won’t stipulate, I can then file a motion with the court using the FL-300, is that correct?
Christina: That’s correct.
Ed: In the next video we are going to cover a number of issues including How to find out how much your ex-spouse is earning before you file a motion to modify support; the showing or “grounds” you need to prove for an FL-300 motion; how to fill out and file the FL-300; and how to serve the FL-300 on your ex-spouse.