family law

[lumberlady]

What is the name of your state?What is the name of your state? California**************.....trying to find out what "Gavron Advisement" means**************.....the ex still wants alimony and is capable of working.

[I AM ALWAYS LIABLE]

Originally Posted by lumberlady

What is the name of your state?What is the name of your state? California**************.....trying to find out what "Gavron Advisement" means**************.....the ex still wants alimony and is capable of working.

My response:

If the intent is to expect the supported spouse to be self-sufficient as of a specified date and thereby shift the burden to him or her to show cause for a support extension, the supported spouse must have been made aware of that expectation--i.e., the attendant consequences of a "Richmond order" (step-downs to termination) will not be "sprung upon" the support payee. [Marriage of Gavron (1988) 203 Cal.App.3d 705, 711-712, 250 Cal.Rptr. 148, 152-153; Marriage of Heistermann (1991) 234 Cal.App.3d 1195, 1204, 286 Cal.Rptr. 127, 134]

A supported spouse cannot be penalized for a failure to meet the court's unrevealed expectation that he or she become self-sufficient: Absent the requisite advance awareness, it is an abuse of discretion to abruptly reduce or terminate support because of the failure to make good faith efforts toward self-support. [Marriage of Gavron, supra--reversible error to reduce W's support to zero after 25-year marriage where order issued 7 years earlier gave no indication of self-support expectation; Marriage of Heistermann, supra--reversible error to terminate disabled W's support where original open-ended order contained no provision "directing (W) into the work force" and no change of circumstances (no "Gavron warning" required before terminating support pursuant to Ca Fam § 4322)]

A formal warning concerning the consequences of a "Richmond order" is not necessarily required. The prerequisite "awareness" of the judicial expectation of future self-sufficiency may come from, e.g., an explicit statement in the support order, a motion and ensuing order that the supported party submit to a vocational training examination, a stipulation addressing the spouse's ability to obtain future employment, or even a justified assumption of continued future employment based on the spouse's employment at the time the order setting a reasonable termination date was made. [Marriage of Gavron, supra, 203 Cal.App.3d at 712, 250 Cal.Rptr. at 153]

The Code itself makes the so-called "Gavron warning" discretionary: "When making an order for spousal support, the court may advise the recipient of support that he or she should make reasonable efforts to assist in providing for his or her support needs, taking into account the particular circumstances considered by the court pursuant to Section 4320, unless, in the case of a marriage of long duration as provided in Section 4336, the court decides the warning is inadvisable." [Ca Fam § 4330(b)]

According to the legislative history, § 4330(b) casts the "Gavron warning" in discretionary ("may") language to accommodate the reality that in many marriages of long duration it would be unreasonable to put the burden on supported spouses to become self-sufficient just as they enter their "senior, non-income producing years." The statute is intended to honor the full integrity of the "Morrison rule" to the effect that trial courts not blindly terminate support jurisdiction in lengthy marriage cases. [See Assembly Comm. Rept., AB 391, 1999-00 Reg.Sess.]

The statute does not appear, however, to undo the Gavron holding that the supported spouse must have been made aware (either expressly or inferentially) of self-support expectations if the court is to terminate or reduce support on that basis as of a specified future date.

Even though an express "Gavron warning" is not required, there is no reason for support obligors not to request that the admonition be given . . . whether support is determined after a contested trial or by stipulation. Preprinted "Gavron warnings" are incorporated in both the FL-343 Spousal or Family Support Order Attachment form ("Notice" at checkbox item 6, see Form 5:M.5) and the FL-180 Judgment form ("Notice" at checkbox item 4.m., see Form 15:F).

Cautious support obligors should have the supported party initial that portion of any stipulated judgment (or MSA incorporated into the judgment) dealing with the self-support expectation so that he or she cannot claim ignorance thereof in the future. This step will ensure that a Richmond order will accomplish its intended goal; and, with regard to other types of support orders, will keep the door open for a future modification or termination based on the obligee's failure to make good faith efforts toward self-support. [See Marriage of Berland (1989) 215 Cal.App.3d 1257, 1260-1261, 264 Cal.Rptr. 210, 211 (support reduction based on obligee's earnings had she made reasonable good faith efforts to become self-supporting]

Limitation--cannot be based on speculation: Step-down provisions in orders setting the initial level of spousal support or in modification orders increasing support cannot be based on mere supposition as to what the supported party's future circumstances might be at the time of each targeted step-down. Evidence in the record as to the parties' circumstances at the time the order is made must support a reasonable inference that needs will be less with each step-down and that the spouse can realistically be self-supporting at the time nominal payments are set to begin. [Marriage of Prietsch & Calhoun (1987) 190 Cal.App.3d 645, 656, 235 Cal.Rptr. 587, 590 (citing text); Marriage of Gavron (1988) 203 Cal.App.3d 705, 713, 250 Cal.Rptr. 148, 153; Marriage of Cheriton, supra, 92 Cal.App.4th at 311, 111 Cal.Rptr.2d at 787; see Marriage of Smith (1978) 79 Cal.App.3d 725, 739-740, 145 Cal.Rptr. 205, 211--abuse of discretion to base step-downs on speculation W's part-time earnings would increase as she progressed through college, where job opportunities unclear]

Discretionary "Gavron admonition": Ca Fam § 4330(b) authorizes the court, when making a spousal support order, to advise the support recipient that he or she "should make reasonable efforts to assist in providing for his or her support needs," taking into account the particular Ca Fam § 4320 factors considered by the court, unless, in the case of a marriage of long duration under Ca Fam § 4336, the court decides this warning is inadvisable. [Ca Fam § 4330(b)]

This discretionary statutory warning is an outgrowth of case law holding that it is an abuse of discretion to terminate (or step down) spousal support on the basis of the supported spouse's failure to attempt in good faith to become self-supporting unless the spouse had been given a prior warning to that effect. [Marriage of Gavron (1988) 203 Cal.App.3d 705, 711-712, 250 Cal.Rptr. 148, 152-153]

IAAL