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Buyer Beware: Caution Against Non-Modifiable Spousal Support

Spousal support is often the main point of disagreement between spouses in a dissolution proceeding. The payment or receipt of spousal support can be decided by a judge, or it can be decided through an agreement between both of the parties that is put into writing and submitted to the judge. Support agreements allow the parties to materialize their requests instead of leaving the ultimate decision up to chance.

Support Agreements

California Family Code § 3580 allows the parties to assent to the payment and receipt of support through a written agreement. Through this written support agreement, parties agree as to the amount and duration of support as well as how the support payments will be made.

Parties have the ability to later file for an increase, decrease, or termination of spousal support if the requesting party can prove that there has been a change in circumstances that justifies an increase decrease, or termination of spousal support. California Family Code § 3591(a) allows the court to modify or terminate a provision in an agreement for spousal support.

There are many reasons why a party requests a modification of spousal support. If the supporting spouse can no longer afford the amount that was agreed upon due to a significant decrease in income, the court may consider a modification. If the spouse receiving the support payments no long needs as much support due to an increase in income, the court also considers a modification. Further, if the spouse receiving the support remarries, the court may consider terminating the spousal support in full.

Nonmodification Provisions

Although California Family Code § 3591(a) allows the court to modify or terminate a provision in an agreement for spousal support, section 3591(c) states that “[a]n agreement for spousal support may not be modified or revoked to the extent that a written agreement . . . specifically provides that the spousal support is not subject to modification or termination.” In other words, if a written spousal support agreement contains a provision that states that the agreement is non-modifiable, the court will not consider a modification.

A non-modifiable support order could be beneficial for a number of reasons. A concretely set support amount allows parties to know exactly how much they will be paying or receiving each month, which may provide the parties with a sense of ease knowing that the amount of support will be consistent and foreseeable.

While a non-modifiable support order could provide parties with stability and certainty when it comes to how much spousal support will be paid or received, a non-modifiable support order should be considered with great caution.

Requests to Modify Non-Modifiable Support Orders in California

As mentioned above, courts do not consider modifications of support orders when support agreements were expressly agreed upon as non-modifiable. California courts have consistently rejected attempts by either party to request a modification of a non-modifiable support agreement.

Cohabiting With Another

In Marriage of Sasson, a husband agreed to pay non-modifiable spousal support until the death of either party, remarriage of the wife, or a date certain. After the agreement was signed, the wife began living with another man and deposited her spousal support checks into a joint account held by the wife and the other man. The court rejected the husbands request for modification because, although the court agreed that it was unfair to continue paying spousal support, he was still obligated to pay according to the nonmodifiable terms of the agreement. Marriage of Sasson (1982) 129 Cal.App.3d 140, 144-147.

A Substantial Increase or Decrease in Income

In Marriage of Hibbard, where the parties signed a non-modifiable support agreement, the court refused to reevaluate the spousal support award despite the supporting spouse being disabled. Marriage of Hibbard (2013) 212 Cal.App.4th 1007, 1014.

If the supporting spouse loses their job or is faced with a decrease in their usual income, they are still obligated under the terms of the support agreement to pay the ordered amount, which could lead to trouble. On the other hand, if the supporting spouse suddenly gets a large pay raise or they win the lottery and now have more money than they did when the support amount was agreed upon, the court will still reject a request to increase support.

If support is based on a non-modifiable agreement the court rejects attempts to request modification even where there has been a substantial increase or decrease in income.

To Modify or Not?

While non-modifiability does have the potential to bring parties peace of mind knowing they will pay or receive the same amount of support on a consistent basis, if there is a change in circumstance that requires a modification of support, the court will absolutely not modify such an agreement even for the most significant change of circumstance. For that reason it is important to proceed on these matters with caution.

There are many factors to consider when coming to an agreement on spousal support. Each case has its own specific needs and complexities which should be handled in a diligent manner. The attorneys at Harris & McKeown Law Firm have been assisting clients throughout Southern California with their family law needs for over 10 years. If you are located in Orange County, San Bernardino County, Los Angeles County, or Riverside County and you need help making the right decision regarding your spousal support agreement with an experienced family law attorney schedule a consultation appointment online or by calling (949) 297-6529.



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