November 17, 2012 By Paul Wallin

Spousal support ordered in a final Judgment of Dissolution is often referred to as a “permanent spousal support.”  Unfortunately this title is a misnomer, there is nothing permanent about a spousal support order in a Judgment unless the terms of the Judgment itself spells out that the spousal support order is non-modifiable.  Usually, spousal support is ordered followed by the following clause: “until the death of either party, remarriage of the supported party or further order of the court.”  Spousal support terminates as an operation of law under the first two conditions; in order to change spousal support by court order there must be a “change of circumstance” from when the original court order was made.

In your case, your ex-wife is arguing “unrealized expectations” as the change in circumstance.  Ordinarily this implies that the parties planned for the supported spouse to become self-supporting in a certain amount of time and reduced spousal support at a date certain in anticipation of such an event. The supported spouse is charged with the burden of making reasonable efforts to become self-supporting. For instance, the parties may anticipate that it would take the supported spouse about four years to finish his/her education and then begin working, slowly becoming self-supporting until spousal support was no longer necessary.  In that situation a spousal support order could look like the following: an original support order of  $2500.00 per month for a period of 4 years, and then a planned step-down to $1750.00, and three years later another planned step down to $500.00.

This would seem a reasonable plan based on reasonable expectations.  However, suppose the supported party is not able to get a job as planned, can he/she then request modification based on a change of circumstance, i.e. “unrealized expectations?”  The answer according the recent case In re Marriage of Khera and Sameer (2012) 206 Cal.App.4th 1464, is that as long as the supported spouse provides evidence that he or she made reasonable efforts to become self-supporting but was unable to do so, “unrealized expectations” would qualify as a change of circumstance.

However, in Khera and Sameer the wife’s efforts to become self supporting were deemed insufficient.  From their Judgment is was clear that the wife planned to obtain her Master’s degree in social work and to be able to support herself at a planned date.  Unfortuantely, instead of proceeding as planned, wife enrolled in a full time doctorate program in clinical psychology – the court found that wife’s voluntary decision to pursue more education rather that become self-supporting was not reasonable and therefore her still being unable to support herself did not qualify as a change in circumstance in the form of “unrealized expectations.”

Nonetheless, it would not be too difficult to imagine circumstances where the inability to be self-supporting would qualify as “unrealized expectations.”  For instance, if a supported spouse went to school to obtain his or her Teaching Credential and then tried to get work only to find that across the state teachers were being laid off instead of hired, that scenario would probably qualify as “unrealized expectations.”  The question would then become, now what?  If a reasonable plan to become self-supporting fails, then what is the supported spouse responsible to do?  What can the supporting party argue should be done?  The answers to these questions are so far unclear, certainly it would be up to the Judge hearing the matter to use his/her discretion to decide how to proceed.  Your success or failure may be directly related to how effectively the matter is argued to the court.

Clearly this is a very complex area of law that requires the guidance of an experienced attorney, if you or a loved one needs help with a spousal support matter or any type of family law matter, call the Orange County spousal support attorneys at Wallin & Klarich today.  Wallin & Klarich has a team of highly skilled, aggressive family law attorneys ready to take your call 7 days a week, 24 hours a day!  Wallin & Klarich has been in the business of helping people for over thirty years and we would like to help you.

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