UNINTENTIONAL WAIVER OF THE ABILITY TO MODIFY A SPOUSAL SUPPORT ORDER
In the recent case of In re Marriage of Hibbard, 212 Cal.App.4th 1007 (2013), the court refused to modify a spousal support order to an amount less than $2,000 per month, despite husband’s proven disability. The parties divorced in 2002, after thirty years of marriage. The husband served in Vietnam and was diagnosed with PTSD before the parties were married. At that time the parties executed the marital settlement agreement, they were both lawyers and represented they were in good health. The agreement provided that the parties agreed spousal support to wife would not be reduced to an amount lower than two thousand dollars per month. The obligation would only terminate when wife or husband died or wife remarried.
In 2011, nine years after the marital settlement agreement was executed, husband was formally diagnosed as disabled due to the PTSD, and was no longer able to work. He subsequently brought an action to modify the spousal support to $0. The rule is that spousal support awards and agreements are modifiable throughout the support period, unless otherwise provided. In determining whether the agreement provided it could not be modified, the trial court treated the agreement as a contract. Since the language of the agreement was clear and explicit, the court found that it was un-modifiable.
The wording of the agreement constituted a waiver of the ability to modify the order because it clearly stated support would not be reduced to an amount less than $2,000 per month.No specific language stating, “modification is waived” is necessary.
This case demonstrates the risks associated with careless drafting. It is important to find competent legal representation to assist in the drafting of such documents, so as to avoid an unintentional waiver of rights.