Part of the divorce process will require both parties to divide the assets acquired during the marriage, and one spouse is often required to support the other after divorce. How long will the support order last? Will the court allow the supported spouse to remain supported for the rest of his or her life? In cases where support is ordered, the court will likely issue a “Gavron Warning” to the supported party. This warning may have a significant impact on the spousal support order, and the supported spouse may risk having income imputed to him/her.

A Gavron Warning is a notice issued by the court to a spouse receiving support that he or she is expected to become self-supporting. Typically, a Gavron Warning will be issued at the time the spousal support order is made. Under certain circumstances, including marriages of long duration, the court may decide that a Gavron Warning is not necessary. Unless the supported spouse has been warned by the court, he or she cannot be penalized for not becoming self-supporting. Once the court issues a Gavron Warning, the court expects the supported spouse to make all reasonable efforts to become self-supporting within a reasonable period of time.

Courts will aim to issue Gavron Warnings for a reasonable period of time. A reasonable period of time is generally one-half the length of the marriage, except for marriages of long duration (over 10 years). (Fam. Code, § 4320.) However, the Court has discretion to order support for a greater or lesser length of time, based on other factors and the specific circumstances of the case. Spouses who need further education or training to become employable “will usually need more advance warning than spouses who already possess job skills and only need to find suitable work.” (Marriage of Schmir (2005) 134 Cal.App.4th 43, 48.) If the supported spouse does not make reasonable good faith efforts to become self-supporting, the supported spouse risks having income imputed.

If the court issues a Gavron Warning to the supported spouse, and the supported spouse fails to become self-supporting, the court may treat the supported spouse as if he/she is earning an income within his/her earning capacity, or impute income to the supported spouse. Moreover, the court may use this imputed income to justify a modification or termination of spousal support. For example, if a party receives a warning to become self-supporting, and the party’s earning capacity is $60,000 per year, but the party fails to become self-supporting after receiving a warning, the court will treat the party as if he/she is earning $60,000 and no longer needs the existing amount of spousal support. The court may choose to reduce the spousal support order or terminate it altogether.

If the court issues a Gavron Warning, the court can impute income, and reduce or terminate spousal support if the warned party fails to make reasonable good faith efforts to become self-supporting. Spousal support and divorce are complicated processes, and an attorney can help you navigate through both. If you are seeking help with a Gavron Warning, obtaining spousal support, or divorce, contact one of the experienced attorneys at Lonich Patton Ehrlich Policastri – we offer free half-hour consultations.

Each individual situation is unique, and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

The competency of a party in a family law proceeding can significantly affect how a case will be litigated in California.  While California is a no-fault divorce state, meaning that the parties may divorce due to “irreconcilable differences”, the law requires that a person must have the capacity to understand the basic legal and financial consequences of entering into a divorce. Under California Probate Code Section 4609, “capacity” means a person’s ability to understand the nature and consequences of a decision and to make and communicate a decision. In the case of proposed health care, capacity is defined as the ability to understand its significant benefits, risks, and alternatives. To ensure that parties with mental health and competency issues are represented fairly in divorce proceedings, the California legislature gave the judiciary the express authority to appoint a guardian ad litem or a conservator to represent the incompetent person’s best interests.

A guardian ad litem or conservator work alongside the protected person’s attorney and will make a wide range of legal decisions for the person ranging from spousal support, property division, custody, and visitation. California Family Code section 2332 (b), provides in pertinent part, that a guardian ad litem may be appointed “to defend and protect the interest of the spouse who lacks legal capacity to make decisions.”

If the spouse is already protected by a conservator, then the court will presume that a guardian ad litem is necessary and will appoint one without a competency hearing. A guardian ad litem differs from a conservator because a guardian ad litem only serves up until the conclusion of the court proceeding in question. The Latin term “ad litem” means “for the suit.” Thus, a guardian ad litem is a temporary guardian. In contrast, a conservator may persist beyond the final adjudication of a single case.

A conservator is appointed to make the day-to-day financial decisions for the protected party.  A conservatorship is governed by California Probate Code 1801(b) which provides that a conservator shall be appointed by court upon showing that a person is “substantially unable to manage his or her own financial resources or resist fraud or undue influence.” To qualify for a conservatorship, the party must submit a brief statement of facts addressing the following five factors:  (1) The inability of the proposed conservatee to properly provide for his or her needs for physical health, food, clothing, and shelter; (2) The location of the proposed conservatee’s residence and the ability of the proposed conservatee to live in the residence while under conservatorship; (3) alternatives to conservatorship considered by the petitioner or proposed conservator and reasons why those alternatives are not available; (4) health or social services provided to the proposed conservatee during the year preceding the filing of the petition, when the petitioner or proposed conservator has information as to those services; and (5) the inability of the proposed conservatee to substantially manage his or her own financial resources, or to resist fraud or undue influence. (Prob. Code § 1821.)

Competency of a party may also be an issue in proceedings to obtain an annulment. Pursuant to Family Code section 2210(c), a marriage is voidable if either party is of “unsound mind” while entering the marriage. Accordingly, a marriage can later be annulled where there is a showing that at least one of the parties was incompetent.  Just as a third-party may move for a court to order a guardian ad litem or conservator, certain third parties can also bring annulments. Some children for example may choose to bring a nullity action after their parent has died, when the new marriage results in that child being cut off from the inheritance.

If you are seeking information or counsel regarding competency issues during divorce, please contact one of the experienced attorneys at Lonich Patton Ehrlich Policastri – we offer free half-hour consultations. We also offer free wills to all of our family law clients during the process of their divorce.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.