This issue was addressed in the recent case os IRMO Martin (3/11/19). In this case, the Fourth District reversed a San Bernardino County temporary judge’s order that the wife repay to ex-husband the spousal support that he previously paid to her after her re-marriage to a new spouse. The appellate court held that the parties agreed in writing that the husband would pay spousal support for four years and that it would not terminate on either party’s death or the wife’s remarriage “when they did not check the box next to this requirement” on local form SB-12035. It held that
“the parties used form SB-12035, which is modeled after Judicial Council form FL-343, approved for optional use. ¼ Form SB-12035 addresses the termination of spousal support obligation by operation of law. In section 3, there is a box for the parties to check next to the following sentence: ‘Spousal support shall terminate upon the death of either party or the remarriage of the supported party, or further order of the court, whichever occurs first.’ (See appen. A.) Similarly, on form FL-343, in section 6b, there is a box for the parties to check next to the following sentences: ‘Support must be paid by check, money order, or cash. The support payor’s obligation to pay support will terminate on the death of either party, remarriage, or registration of a new domestic partnership of the support payee.’ (See appen. B.) By failing to check the box on form SB-12035, in section 3, husband agreed that wife’s remarriage would not affect his obligation to pay spousal support to her.
We conclude that as a matter of law, the spousal support order, agreed to by both husband and wife via form SB-12035 attached to the judgment, is not subject to termination by operation of law (§ 4337). In reaching this conclusion, it should be borne in mind that forms SB-12035 and FL-343 leave a lot to be desired. Although these forms contain language that acknowledges section 4337’s termination of spousal support by operation of law, the parties must affirmatively ‘opt in’ to have the statutory requirement apply. However, logic suggests that the parties should affirmatively ‘opt out’ of the statutory requirement in order to waive section 4337’s application. We urge the Judicial Council of California and the local courts to revise their forms so that the parties must specifically check a box to waive section 4337’s application.”
Thus, the trial court erred in ordering Wife to refund to husband the spousal support that she received after the wife remarried.