When a husband and wife are married for 10 years or longer, the California Family Code provides a built-in presumption that this is a marriage of “long duration.” This classification is important in divorce proceedings, as it commonly entitles one spouse to receive permanent spousal support, as opposed to support that will terminate on a specific date. In recognition of the potential for one ex-spouse to abuse this privilege, the courts have adopted several rules intended to prevent the supported spouse from resting on his or her laurels in reliance on a lifetime of support from their ex-spouse. The most frequently invoked such rule is called the “Gavron Warning.”
The Gavron warning is frequently issued to the supported spouse at the time the permanent spousal support order is made. The warning essentially compels the supported spouse to make all reasonable efforts to become self-supporting, within a reasonable time. If, in the future, the supporting spouse feels as though the supported spouse has failed to make such reasonable efforts, the supporting spouse can request to modify his or her support obligation downward, based on the failure to comply with the Gavron warning. At this point, the courts used to assess whether or not the supported spouse had made reasonable efforts. However, a recent case suggests that the courts may now have to assess another threshold issue before moving on to this analysis.
In an unpublished opinion, the 4th district court of appeals held that before a trial court can delve into an analysis of a supported spouse’s specific efforts to become self-supporting, it must first reconsider whether or not it is reasonable to expect that spouse to ever become self-supporting. This case, Irmo Lillestrand, involved a couple who were married for 29 years. Although the wife had a degree in early childhood education, she never worked outside the home, in part to accommodate the husband’s work arrangement. Upon divorce, the wife was awarded significant spousal support, but it was accompanied with a Gavron warning. At this time, the wife was in her early fifties and had never held a job outside the home. (She had operated a minimally successful business out the home throughout the marriage) Four years later, the husband received a downward modification of his spousal support based on the trial court’s ruling that the wife had not taken reasonable efforts to become self-supporting. The court reasoned that the wife should have been able to secure a teaching job with minimal effort.
The court of appeals reversed, however, stating that the trial court erred in not assessing whether wife could ever become self-supporting. The court of appeals held that she likely could not, based on her advanced age, the fact that she would have to compete with twenty year-olds for entry level teaching positions, and based on the fact that it was reasonable for her to decide to work from home due to the fact that she had to tend to two minor children.
While this decision may not seem incredibly significant, it has the potential to impact future divorce cases. It creates an extra step that trial courts will have to take in the spousal support analysis. If the courts skip this step, this will open the door to an appeal. In addition, courts will now have to make a retro-active analysis as to whether a prior Gavron warning ought to remain in effect. If a Gavron warning that initially seemed appropriate is no longer appropriate, the court will have to rescind it altogether. Ultimately, this will provide supported spouse’s with an additional opportunity to litigate the appropriateness of the Gavron warning and to argue for it’s rescission.