Spousal Support Modification

1
Spousal Support Modification

• FC 3591(c) An agreement for spousal support
  may not be modified or revoked to the extent that
  a written agreement, or, if there is no written
  agreement, an oral agreement entered into in open
  court between the parties, specifically provides
  that the spousal support is not subject to
  modification or termination
• FC 3651(d) An order for spousal support may
  not be modified or terminated to the extent that
  a written agreement, or, if there is no written
  agreement, an oral agreement entered into in open
  court between the parties, specifically provides
  that the spousal support is not subject to
  modification or termination

2
Marriage of HuffordLanguage at issue

• 6 this court shall retain jurisdiction to
  determine all issues raised by this agreement and
  not specifically excluded from this reservation
  of jurisdiction.
• 10 This agreement is entire. We may not
  alter, amend or modify it, except by an
  instrument in writing executed by both of us. It
  includes all representations of every kind and
  nature made by each of us to the other. This
  agreement shall be binding upon and inure to the
  benefit of both of us, and of our heirs,
  administrators, executors, successors, and
  assigns.

3
Court division of assets

• Court must divide the community estate equally
• All CP
• All Quasi-CP
• Not SP (unless spouses consent wrt joint SP)
• Assets valued at time of trial
• Continuing jurisdiction over omitted property
• Divided equally except where justice requires
  otherwise

4
Dividing CP assets

• Court discretion on means of division
• In kind
• Different assets of equal value to each spouse
  (preferences not binding)
• Award w/ equalizing condition
• Order sale of some assets and division of
  proceeds
• Exception for missing spouse and 5K or less
• Exception deferred home sale
• Exception personal injury award

5
Court division of liabilities

• Court must characterize and assign/confirm all
  liabilities
• General rule equal division of marital debts
  before separation
• Except with negative value community, can
  consider ability to pay
• Debts after separation
• Necessaries look to need/ability when incurred
• Other to debtor spouse
• Debts after dissolution debtor spouse
• Separate debt debtor spouse
• Including debt incurred during M not for benefit
  of the community
• Pre-marital debt debtor spouse

6
Deferred Home SaleFamily Code 3800 - Definitions

• "Custodial parent" means a party awarded physical
  custody of a child.
• "Deferred sale of home order" means an order that
  temporarily delays the sale and awards the
  temporary exclusive use and possession of the
  family home to a custodial parent of a minor
  child or child for whom support is authorized
  under Sections 3900 and 3901 or under Section
  3910, whether or not the custodial parent has
  sole or joint custody, in order to minimize the
  adverse impact of dissolution of marriage or
  legal separation of the parties on the welfare of
  the child.
• "Resident parent" means a party who has requested
  or who has already been awarded a deferred sale
  of home order.

7
Deferred Home SaleFamily Code 3801 economic
feasibility

• If one of the parties has requested a deferred
  sale of home order pursuant to this chapter, the
  court shall first determine whether it is
  economically feasible to maintain the payments of
  any note secured by a deed of trust, property
  taxes, insurance for the home during the period
  the sale of the home is deferred, and the
  condition of the home comparable to that at the
  time of trial.
• In making this determination, the court shall
  consider all of the following
• The resident parent's income.
• The availability of spousal support, child
  support, or both spousal and child support.
• Any other sources of funds available to make
  those payments.
• omitted from this slide Legislative intent

8
Deferred Home SaleFamily Code 3802 - Criteria

• If the court determines pursuant to Section 3801
  that it is economically feasible to consider
  ordering a deferred sale of the family home, the
  court may grant a deferred sale of home order to
  a custodial parent if the court determines that
  the order is necessary in order to minimize the
  adverse impact of dissolution of marriage or
  legal separation of the parties on the child.
• In exercising its discretion to grant or deny a
  deferred sale of home order, the court shall
  consider all of the following
• The length of time the child has resided in the
  home.
• The child's placement or grade in school.
• The accessibility and convenience of the home to
  the child's school and other services or
  facilities used by and available to the child,
  including child care
• Whether the home has been adapted or modified to
  accommodate any physical disabilities of a child
  or a resident parent in a manner that a change in
  residence may adversely affect the ability of the
  resident parent to meet the needs of the child.
• The emotional detriment to the child associated
  with a change in residence.
• The extent to which the location of the home
  permits the resident parent to continue
  employment
• The financial ability of each parent to obtain
  suitable housing.
• The tax consequences to the parents.
• The economic detriment to the nonresident parent
  in the event of a deferred sale of home order.
• Any other factors the court deems just and
  equitable.