Spousal Support: Importance of Notice and Opportunity to Become Self-supporting

In re Marriage of Schmir (2005) 134 Cal.App.4th 43

Parties were married 23 years; Marital Settlement Agreement provided that husband pay wife $5,800 per month as spousal support until the death of either party, wife’s remarriage, or further order of the court; MSA was silent on a spousal support termination date and did not contain any Gavron type warning; wife was not employed and had medical debts. Fourteen years after Judgment entered, husband filed a request to modify or terminate spousal support, based on wife becoming employed, wife reaching age of eligibility to draw from IRA, and wife reduced amount of medical debt. At hearing, evidence showed wife had not returned to work, but that she was capable of earning $2,500 per month; she was eligible to draw from IRA; and medical debt had decreased from $2,000 per month down to $500 per month. Trial court ordered spousal support reduced to zero and retained jurisdiction over spousal support. Wife appealed.

The Court of Appeal reversed, as the trial court had abused its discretion in imputing employment income to wife without affording her fair advance notice and reasonable time to secure a job. There exists a “judicial recognition that before spousal support can be terminated or reduced, the supported spouse — often an ex-wife with little or no job skills or a long history of unemployment outside the home — must be given fair notice of the expectation of self-sufficiency and a reasonable opportunity to achieve such a goal.” Schmir at 54.

“In considering whether a supported spouse is entitled to an appropriate advance warning of the need to obtain employment, we see no logical reason to distinguish between spouses who need to become employable and spouses who are already employable. Equity and fairness require spouses in both classes receive a reasonable notice and opportunity to find employment.” Schmir at 57.

In Schmir, 3 weeks or even 10 months notice were problematic. Thus, the Court held that the trial court had abused its discretion in terminating wife’s spousal support without affording her reasonable advance notice and opportunity to find gainful employment.


Nathan W. Gabbard is a Certified Family Law Specialist, certified by the Board of Legal Specialization of the State Bar of California and practices exclusively family law in Santa Monica, California.

www.nathanwgabbard.com