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Opposing an order to show cause to increase spousal support in California

Opposing an order to show cause or motion for an increase in spousal support payments in California is the topic of this blog post. The party who is seeking an increase in spousal support in California has several burdens that they must meet. This blog post will briefly discuss these burdens.

The first and most important burden that the moving party must meet is showing that the original support order is modifiable based on the language in the order or agreement/stipulation. If this burden is not met no modification can be ordered.

A spousal support order may not be modified or terminated to the extent the parties’ written agreement or, if no written agreement, their oral agreement entered into in open court, expressly provides spousal support is not subject to modification or termination. See Family Code § 3651(d); see also Marriage of Sherman (1984) 162 Cal. App 3d 1132, 1138–1140, in that case a modification was not proper where the underlying agreement merged into the judgment contained a nonmodifiability provision.

The second burden that the moving party must meet is showing continuing spousal support jurisdiction which is often found in a marriage of long duration.

An order providing for spousal support until a specified date and precluding modification on or before that date is not itself an express termination of spousal support jurisdiction as of the specified date. Quite the contrary, by providing for nonmodifiability until the specified date, such an order allows for the possibility of modification after the specified date and thus necessarily implies a retention of spousal support jurisdiction. This is especially true where the marriage was of long duration. Fam.C. § 4336(a). Marriage of Ousterman (1996) 46 Cal. App. 4th 1090, 1094–1095, this case involved a 25–year marriage.

Two decisions by California Courts of Appeal held that even assuming continuing spousal support jurisdiction, a spousal support modification may be granted only if the party seeking the modification shows a material change of circumstances since the most recent order. Another California Court of Appeal also held that a material change of circumstances is required even if the prior amount is established by agreement.

However additional burdens must be met by a party who requests that the court increase the amount of spousal support that they receive.

A California Court of Appeal has held that before a court can consider a motion for an increase in spousal support payments the moving party must demonstrate that either the prior order, at the time that it was made, was not sufficient to meet his or her reasonable needs at that time as measured by the Family Code § 4320 factors, or the reasonable cost of satisfying those needs has increased since the original order was made.

Once that burden has been met the moving party then must prove that the other party has the ability to pay an increased amount of spousal support. However in that same case it was also held that unless a need for increased spousal support was shown, evidence that the other party had increased their income and standard of living was not relevant.

In another case a California Court of Appeal held that where the moving party failed to meet the threshold burden an increase in spousal support was not proper.

Attorneys or parties in California who wish to view a portion of a sample memorandum of points and authorities in support of an opposition to an order to show cause for increased spousal support sold by the author can see below.

 

Attorneys or parties in California that would like more information on a California divorce litigation document package containing over 45 sample documents including a sample points and authorities in support of an opposition to an order to show cause for increased spousal support can use the link shown below.

California divorce litigation document package

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

If you enjoy this blog post, tell others about it.  You can subscribe to the author’s FREE weekly newsletter for California and Federal litigation by visiting: http://freeweeklylegalnewsletter.gr8.com/

Copyright 2013 Stan Burman. All rights reserved.

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

These materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

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