Law Review: spousal support terminates on remarriage
“Except as otherwise agreed by the parties in writing, the obligation of a party under an order for the support of the other party terminates upon the death of either party or the remarriage of the other party.” [Family Code 4337].What is noteworthy about the above-quoted Family Code section is twofold:(1) when I went to law school they didn’t even have a Family Code, and I had hair and (2) the Code section is the definitive law on what happens to spousal support (formerly alimony) on the death of either spouse or the remarriage of the support-receiving spouse, which I will refrain from calling the wife.Marital blissRoger Earl Thornton and Darlaine A. Thornton Briones were married in 1977. Earl and Darlaine separated in 1994. Their marriage was dissolved in 1997.Settlement agreementThey reached an agreement about spousal support which the Court entered as an order:”The Court finds that husband shall pay to wife for her support the sum of $400 per month as spousal support, payable one-half on the first and one-half of the fifteenth day of each month, commencing May 15, 1997, and continuing under further Order of the Court, death of either party, or for a period until March 1, 2003, whichever first occurs. Said spousal support shall be non-modifiable.”You be the judgeDo you see the issue? Does Darlaine’s spousal support stop because she got remarried? Read no further until you have analyzed the issues and formed a legal opinion.The opinionAfter reciting section 4337, here’s what the Court wrote: “A written agreement to waive the provisions of section 4337 must be specific and express. An agreement making support “non-modifiable” is not the same as an agreement making support ‘non-terminable’ upon the statutorily specified events. If the parties intend that support is to be ‘non-terminable for any reason whatsoever,’ they must say so in their agreement. No particular words are required. On the other hand, silence will not do. Language stating that the support is not modifiable also will not due.”The wife failed to prove her case by clear and convincing evidence.The Court ordered that Darlaine’s spousal support was terminated when she remarried, and she was ordered to reimburse Earl for his spousal support payments made after she was married.And to make matters worse, she was required to reimburse Earl for his payments of her attorneys’ fees.The messageIf you are the supporting spouse, make sure the dissolution agreement states that the spousal support terminates on the death of husband or wife or on the receiving spouse’s remarriage (or living together if you can pull that off), adding that section 4337 is waived.If you are the receiving spouse, make sure the agreement says spousal support continues — even if you remarry — not to suggest your spouse would sign.Jim Porter is an attorney with Porter /Simon, with offices in Truckee and Reno. He may be reached at email@example.com or at the firm’s web sit e http://www.portersimon.com
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