Family Code Section 4337 provides: “Except as otherwise agreed by the parties in writing, the obligation of a party under an order for support of the other party terminates upon the death of either party or the remarriage of the other party.”
As to the written agreement required in order to waive section 4337, no particular words are required. However, silence will not suffice. In re Marriage of Glasser (1986). In other words, the termination provision in FC 4337 applies by operation of law unless the parties expressly agree in writing.
Marriage of Martin (2019) determined that by failing to check the box on the local Judicial Council form that husband waived section 4337 provision that spousal support would terminate upon his former spouse’s remarriage.
Craig and Cynthia Martin entered into a Stipulated Judgment for Dissolution of Marriage, in which Craig agreed to pay Cynthia $1,000 per month as spousal support for a period of four years. The parties were self-represented and used the local form SB-12035 which set forth the terms of the parties agreement. The form includes a box in front of the term “Spousal support shall terminate upon the death of either party or the remarriage of the supported party, or further order of the court, whichever first occurs.”
Shortly after the Judgment was entered, Cynthia remarried. When Craig later discovered this he stopped paying support and filed a motion requesting that Cynthia repay any support after the date of her remarriage. The Court agreed with Craig and ordered Cynthia to repay $27,000 in support payments and pay $2,700 in attorneys fees.
The Trial relied on Marriage of Thornton (2002) in which the Court of Appeal held that “if the parties wish to make a written agreement to waive the remarriage provision of section 4337, they must at a minimum expressly state that the supported spouse’s remarriage will not terminate spousal support.”
Wife appealed the Order and the Court of Appeal reversed the Trial Court’s Order and specifically the Court’s reliance on Thornton. Pointing out that a more recent case disapproved of Thorton’s statement cited above. In IRMO Cesnalis (2003), the Court held that the required language stated in Thornton went beyond the requirement set forth in FC 4337. There does not need to be an express statement that the supported spouse’s remarriage will not terminate spousal support.
The holding in Martin gives rise to a practical problem for parties drafting their own Judgments. Most counties have adopted local Judicial Council forms to assist self-represented litigants in drafting their own Judgments. The majority of self-represented litigants do not understand all the legal provisions in the Judgments they draft, nor have they read the relevant case law interpreting the statutory provisions contained therein. In holding that the parties’ failure to check a box on a form provides a sufficient “writing” to represent the parties’ agreement to waive section 4337, the Court requires parties to specifically “opt in” to a provision that requires the parties to “opt out” if they intend otherwise.
Martin provides another example of the risk self-represented litigants take when they decide to draft a Judgment for Dissolution of Marriage without the assistant of counsel. In short, their intentions may not be accurately reflected in the Judgment they sign when the Court is later asked to interpret the Judgment.
If you want a better understanding of remarriage and spousal support, please contact our office to schedule a consultation. The Law Office of Bawden & Kochis also handles legal issues regarding adoption, annulment, mediation, child custody (with no accompanying domestic violence), child and spousal support as well as pre-marital and post-marital agreements. Telephone (909)792-0222, or email us at [email protected]