AMAZING EXIT STRATEGIES
TRYING TO GET OUT OF PAYING SPOUSAL SUPPORT? READ ON FOR TWO EXTREME EXAMPLES
Are you still paying spousal support after your dissolution? You are not alone. Many former spouses face the more than unpleasant task of writing that monthly spousal support check to their ex-wives or ex-husbands after the divorce proceedings have ended. Marriages less than 10 years in duration typically have a built-in end date for paying spousal support. For these short term marriages, spousal support typically runs about one-half the length of the marriage. For example, after a marriage of six years, you’d be done paying support in three. Not so bad.
However, in California, for marriages that run for more than 10 years, unless the supported spouse remarries, dies or experiences a significant change in his or her finances to become self-sufficient, there is little light at the end of the tunnel for the supporting spouse. They are paying what is called “long term” or “permanent” support. Especially now that the job market is so precarious, even if the supported spouse has been admonished by the Court to make good faith efforts to become self-sufficient, the chances that the support obligation will end are slim.
With unemployment currently over 10% in California, employment opportunities are fewer and the competition for jobs is fiercer. However, this does not mean that all payers of spousal support throw in the towel and resign themselves to continuing to send monthly support checks. Some paying spouses remain courageous and determined to secure a release from their long term spousal support obligation. In the cases I describe below, two husbands were determined to terminate their spousal support obligations based on the post-divorce criminal conduct of the former wives they were supporting. Read on and see how well they did. Believe it or not!
WELCOME TO FLORIDA, THE SUNSHINE STATE
In Craissati v. Craissati, Andrew, an investment banker, agreed to pay his former mate, Patricia, $2,000 each month for eight years or until her death, remarriage or cohabitation with another person. This spousal support order was confirmed in a judicially approved marital settlement agreement and entered as the Judgment of the Florida Family Law Court in 2001.
Four years later, Patricia was convicted of driving under the influence (D.U.I), causing serious bodily harm to two individuals, and leaving the scene of the accident. Her actions were not taken too kindly and she was sentenced to nine years at the Hillsborough Correctional Institute in Riverview, Florida. With Patricia nestled in the slammer, Andrew seized the opportunity to get out from under his spousal support obligation. Admittedly, Patricia was not in need of monthly support since the State of Florida was covering her monthly expenses. However, the spousal support order had very specific conditions for terminating support, and getting financial assistance from a penal institution was not one of them. Andrew knew that he had to be more creative. He therefore took the position that Patricia was cohabitating with a cellmate and thus he was no longer obligated to support her.
Believe it or not, both the trial court and the appellate court agreed with Andrew, holding that Patricia was truly cohabitating with another person. Certainly a bizarre ruling, but was it legally defensible? Yes. California has numerous cases dealing with cohabitation as basis for terminating or modifying support. However, in all of these cases, the California courts looked at the “traditional” view of living together in a home, apartment or trailer, not within the confines of a penal or correctional institution. A question to ponder: would the decision have been different if Patricia were in solitary confinement or under house arrest? The world will never know.
NEW JERSEY: THE GARDEN STATE, OR, “LETTUCE ENTERTAIN YOU”
When New Jersey comes to my mind, I immediately think about Tony Soprano of The Sopranos, the “Bada Bing Club,” and the cute little pig on the top of the Italian deli in Tony’s hometown. But New Jersey has much more to offer than great delis and entertainment. Welcome to the wonderful world of family law and the New Jersey way to try to get out of paying spousal support.
Under New Jersey law, long term spousal support can only be terminated in the traditional ways: remarriage or death. Unless a payer is able to show that the receiving party has committed an act “so violative of social norms that would confound the notion of simple justice,” spousal support must continue.
Enter Linda Calbi. In a drunken rage, she kicked her 15-year-old son to death. Her ex-husband, Christopher, pointed to her killing of their son as his way to stop writing monthly support checks. Slam dunk, right? FORGETABOUTIT!
Incredibly, the trial court and later the appellate court found that Linda’s actions did not evidence evil intent. The trial court was quite lenient in passing sentence, finding that she would have to live with what she had done for the rest of her life. And that Christopher would have to continue to pay spousal support for the rest of his. Believe it or not!
WELCOME TO HOTEL CALIFORNIA
Admittedly, these cases are in the extreme and probably would not pass muster in California’s Family Law Courts.
In the example of Patricia, the spouse incarcerated in Florida, a series of cases clearly define the more traditional arrangements that constitute cohabitation in California. Under California law, Patricia’s unique (and imposed) living arrangements would not be a basis for ending spousal support. However, since her current needs were being reasonably met (albeit by a penal institution) there would be a legitimate basis for a modification of Andrew’s support obligation.
As to the New Jersey case, Linda’s criminal conviction does not have any relationship to Christopher or, by extension, his support obligation. Therefore, under California’s Family Code, as in New Jersey, such a conviction would probably have no impact or benefit to the paying spouse. Only if Linda had perpetrated domestic violence against Christopher directly might there have been some financial relief for him.
Recently, I spoke to our Family Law Section of the Bar Association and outlined a series of legal exit strategies that have successfully reduced or terminated our clients’ spousal support obligations. If you are paying long term spousal support, you need a road map with definitive goals and objectives based on a well-defined legal exit strategy—we can help.
COMING ATTRACTIONS ON FAMILY LAW MATTERS
In my next post, I’ll discuss the case of an Orange County man who tried to avoid both his spousal and child support obligations by claiming he needed to defer his salary to support his struggling start-up company, where our would-be entrepreneur, Marc, went wrong, and what his former spouse, Raquel, did right in seeking an appellate review of their case.