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A Waiver of Family Code Section 4337 Which Terminates Spousal Support Upon the Supported Spouse’s Remarriage Does Not Need to be Express or Specific

Husband and Wife separated in 2006 after a 16 year marriage. Five years later, in March, 2011, they entered into a Stipulated Divorce Judgment.

Husband, a highly paid clothing executive, experienced a significant drop in his income during the protracted separation period from about $1,900,000 per year (or $158,000 per month) to about $840,000 per year (about $70,000 per month). He agreed to pay spousal support of about $19,166 per month, consisting of $15,000 per month plus a $50,000 annual payment. The divorce judgment acknowledged that support was below the marital standard of living.

The stipulated divorce judgment further provided that if Wife were to remarry within 24 months, spousal support would terminate. If she were to remarry after the 24 month period, spousal support would terminate only if her new husband’s income exceeded $400,000. If it did not, then Husband’s spousal support payments would reduce by an amount equal to 45% of Wife’s new husband’s income.

In January, 2014, Husband’s divorce attorney filed an RFO to terminate spousal support based on Wife’s remarriage. (He also requested a reduction of child support to guideline, which is addressed separately here, and for increased timeshare with one of the children, but the Appellate Court did not consider that issue.)

The divorce court found that although Wife had remarried on October 19, 2012, Husband and Wife had entered into a stipulation on October 15, 2012 changing the “24 months” to “18 months”. Had there been no October, 2012 stipulation, spousal support would have terminated upon Wife’s remarriage pursuant to the Judgment.

The divorce court then ruled that it would not terminate spousal support pursuant to Family Code Section 43371, which ordinarily automatically terminates spousal support upon the supported spouse’s remarriage, because the language of the judgment and stipulation constituted a waiver of Section 43372.

The divorce court did reduce spousal support from $19,166 to $16,828 per month based on Wife’s new husband’s income of about $65,000.

Husband’s divorce attorney appealed and argued that the judgment and stipulation did not expressly waive Family Code Section 4337 with sufficient specificity.

The Appellate Court agreed with Wife’s divorce attorney and affirmed the divorce court’s ruling. It held that section 4337 waivers do not need to be express. By entering into the October, 2012 stipulation, Husband demonstrated that he intended to exclude Wife’s remarriage in the future as a reason to terminate spousal support.

The Court pointed out that Husband’s divorce lawyer failed to introduce any meaningful extrinsic evidence to support his argument that the stipulation should be disregarded, despite having had multiple opportunities at the trial level to do so.

1Family Code Section 4337 states: “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.”

2The trial court provided the same explanation for why Husband had waived the benefit of Family Code Section 4323, which states in pertinent part: “Except as otherwise agreed to by the parties in writing, there is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabiting with a nonmarital partner.” This ruling was apparently not appealed by Husband because the Appellate Court does not address it other than to mention the trial court’s ruling.