Spousal Support

November 1, 2016

Gauging a Spouse’s Ability to Work in California Alimony Cases – Bufkin v. Bufkin

When a California court considers a divorcing spouse’s request for alimony or spousal support, it generally looks at two things: the requesting spouse’s need for the money and the other spouse’s ability to pay. The first inquiry includes looking at the requesting spouse’s ability to work or otherwise earn income. As the state’s Second District Court of Appeals recently explained, the burden is usually on a spouse who says he or she can’t work to prove it.Husband and Wife separated in January 2013, following 26 years of marriage. More than one year later, a trial court granted Wife’s motion for a domestic violence restraining order that barred Husband from going within 100 yards of Wife. The trial judge later denied Husband’s request for spousal support, in which he claimed that he was no longer able to work in sheet metal because of an unidentified physical disability. The court noted that the Social Security Administration had denied Husband’s request for disability insurance benefits and that he had said during the litigation that he was actively looking for work.

Husband appealed the decision, arguing that the trial court wrongly denied his motion for spousal support based on the domestic violence restraining order. The Second District disagreed. Instead, the Court said the trial judge’s decision was based on the finding that Husband could still support himself. The Court noted in particular that Husband was relatively young, had retired for reasons unrelated to his supposed disability, and could find other work without jeopardizing his pension. The Court also observed that Husband had been turned down for Social Security Disability Insurance benefits, that he said he was actively looking for work, and that there was evidence showing that he was still physically capable of doing repairs on his home.

April 12, 2016

Earning Capacity and Changes in Circumstances in California Spousal Support Cases – In re Marriage of Penprase

by Lorna Jaynes

California courts usually won’t change a spousal support award unless the person who wants to alter the award shows that there’s been a sufficiently significant change in circumstances to warrant the modification. On the other hand, state spousal support law carries with it a strong preference that a person receiving support make reasonable efforts to become self-sufficient. As the state’s Sixth District Court of appeals recently explained, a person looking to reduce or terminate support on the grounds that the recipient hasn’t made such efforts bears the burden of proving that the recipient isn’t living up to his or her earning capacity.

Husband and Wife separated in 2001, following roughly 19 years of marriage. They divorced and entered into a marital settlement agreement a year later, through which the couple decided how they would divide their various property and assets. They also agreed that Husband would pay Wife nearly $2,700 per month in spousal support. Those payments were set to continue until either spouse died, Wife remarried, the couple agreed otherwise, or a court ruled that the payments should be modified or terminated. The agreement further stated that each spouse should strive to become self-supporting and that a court could consider that responsibility in altering the payment arrangement at any time.

Husband went back to court in 2013, asking a judge to either reduce or terminate the spousal support payments. He alleged that Wife had turned down a higher paying management position at Macy’s to stay in her sales associate role with the company. Husband also noted that the couple had been married for less than 20 years, and he had already paid support for a decade. He also argued that the spouses had lived above their means during the marriage, and he said the court shouldn’t rely on their standard of living at that time to set the support award.

November 13, 2015

Conscious Uncoupling

by Lorna Jaynes

Gwyneth Paltrow’s announcement on her website Goop last year that she and husband Chris Martin were divorcing presented the views of Dr. Habib Sadeghi & Dr. Sherry Sami, apparently experts on what it means to divorce. Sadeghi and Sami use evolutionary biology and the structure of the human skeleton (“Life is a spiritual exercise in evolving from an exoskeleton for support and survival to an endoskeleton”) in order to explain why a divorce might happen. Good grief. One might think that a simple press release announcing the divorce would suffice, but apparently the star feels the need to use her divorce as an occasion to enlighten us all. Regardless, the impetus and intent behind so called “conscious uncoupling” is a good one.

It is about putting the children first by minimizing conflict and supporting the child’s relationship with the other parent. A thoughtful process can help couples from regressing into immature and harmful behavior. They can be helped to understand why they chose to end the marriage and how the process can be managed without unnecessary harm to any children and without catastrophic financial consequences. Disputes about custody, visitation, and spousal support can be addressed with much less anger if the couple elects to approach the end of their marriage “consciously,” instead of trying to hurt the other person.

The term conscious uncoupling derives from psychologist Katherine Thomas Woodward and the goal is to to negotiate the end of a romantic relationship with goodwill and respect; in a way that enriches rather than wrecks lives. Katherine is a romantic and a realist; a fan of marriage and love who endeavors to explore the possibility that couples seeking her guidance in ending their relationship might actually stay together. But also, she argues that the ideal of lifelong monogamy is antiquated: researching the ‘happy-ever-after myth’, she discovered that it emerged 400 years ago and ‘had a lot to do with the life conditions of the time – many people died before the age of 40’. The Goop article also references the academic journal Evolutionary Anthropology, stating that we are living too long for marriage to one person to be a sensible choice. We are out of evolutionary synch, and shouldn’t feel wretched that we want out, it’s normal.

August 6, 2015

California Court OKs Computer Program to Set Temporary Spousal Support Award – In re Marriage of McDowell

by Lorna Jaynes

When a court considers whether to award spousal support in a California divorce case, it looks at both spouses’ financial situations to determine their need for support and ability to pay it. That often includes detailed information about their income, expenses, and job prospects. In a recent case, California’s Fourth District Court of Appeals approved the use of computer software designed to make calculating support awards easier. The court said it was perfectly fine for a judge to rely on a report generated by the software, at least when making a temporary spousal support award.

Husband and Wife had been married for roughly 22 years when Wife filed for divorce in December 2013. She also requested more than $3,000 per month in spousal support, saying that she’d recently lost her job and was unemployed while looking for new work. She was earning just over $1,660 per month in unemployment benefits at the time, while Husband was bringing in more than $8,600 per month.

Wife later filed an amended Dissomaster report, proposing temporary support in the amount of nearly $2,400. Dissomaster is a computer program used to compute child and spousal support based on income, expenses, and other information and in accordance with state guidelines. It produces support estimates in the form of a court order that a judge can then adopt, amend, or disregard. In this case, the trial court adopted the proposal and ordered Husband to pay $2,400 per month in temporary support. According to the Fourth District, that decision came after Husband’s attorney said Husband “agreed with the numbers presented.”

April 21, 2015

Revising Spousal Support Awards in California Divorce Cases – In re Marriage of Gartman

by Lorna Jaynes

A person seeking to increase or decrease spousal support payments in California generally has to show that the circumstances have significantly changed since the support award was initially ordered. In a recent case, the state’s Third District Court of Appeals explained that a court can’t modify a support award if it doesn’t know how the first court originally determined the award amount.

Husband and Wife separated some time before 2008, the year in which they went to trial on various issues related to their divorce, one of them being spousal support. Husband filed documentation indicating that his monthly income was roughly $34,000 in salary, wages, and bonuses, that his monthly expenses were just under $9,500, and that he owned real property worth about $450,000. Wife, on the other hand, said she was making about $8,300 per month and had more than $8,400 per month in expenses. She also stated that she owned about $700,000 in real estate.

A trial judge dissolved the marriage and ordered Husband to pay Wife spousal support on a sliding scale through 2023. Husband was ordered to pay Wife $3,000 per month and 30 percent of his annual bonus in the first five years, $2,000 per month and 20 percent of his annual bonus over the next five years, and $1,000 per month and 10 percent over the last five years.

December 31, 2014

Court: No Spousal Support for Domestic Abusers – In re Marriage of Kelkar

by Lorna Jaynes

California law allows a family court judge to deny or reduce spousal support payments in a divorce case when the spouse requesting or receiving the support has been convicted of domestic violence against the other spouse during the last five years. The law, set out in Section 4325 of the California Court of Appeals, was enacted in January 2004. The state’s Second District Court of Appeals recently explained that the law can nevertheless be applied retroactively to cover domestic abuse convictions before the statute went into effect.

Husband filed for divorce from Wife in July 2002. He alleged at the time that Wife had physically and verbally abused him roughly 200 times over the course of their marriage, including by punching him, threatening him with knives, and trying to push him down a flight of stairs. Wife was charged with a crime following an incident in 2000, in which Husband said he awoke to find her yelling at him and brandishing two knives. Wife proceeded to stab holes into the waterbed in which Husband had been sleeping, according to a police report, and Husband was cut in a struggle for the knives.

Husband and Wife entered into an agreement in 2004, under which they settled various property distribution issues and in which Husband agreed to pay Wife monthly spousal support. The appeals court later recounted that Wife continued to pepper Husband with profane and threatening text messages following their divorce, and she also harassed Husband’s fiancé. She violated restraining orders obtained by both Husband and the fiancé, according to the Court.

March 30, 2014

Divorce, Spousal Support and Cohabitation – In re Marriage of Woillard

by Lorna Jaynes

In most divorce cases, the terms of any spousal or child support obligation are set forth in either a court order or an agreement between the parties. Often, that includes a stipulation that spousal support payments will stop when the person receiving them remarries or otherwise “cohabitates” with another person. In In re Marriage of Woillard, California’s Second District Court of Appeals makes clear that the term “cohabitation” is interpreted fairly broadly.

Husband and Wife divorced in 1990 after what the Court called a “lengthy” marriage. Under the terms of the divorce judgment, Husband was required to pay wife $4,000 a month in spousal support until Husband or Wife died or until she was remarried or began cohabitating with an “unrelated male.” In 2011, Husband filed an action seeking to terminate the spousal support payment, arguing that Wife had been cohabitating with her boyfriend, Keith, for the last six years. A trial court agreed, concluding that the spousal support agreement expired in 2005 and ordering Wife to pay Husband back $256,000 in support payments that she shouldn’t have received.

The Court noted that Wife and Keith were engaged in 2004, vacationed and attended family events together and “shared significant resources” through the course of their relationship, which began three years earlier. Wife loaned Keith $30,000 – an amount he later paid back – and he often stayed at her home, where he kept clothes and other personal belongings and received his mail. The couple kept a joint checking account related to expenses and rental income for two condominiums that Wife owned. They also jointly purchased a boat in 2005, securing a loan for it by using Wife’s home as collateral. Keith slept on the boat when he didn’t stay at Wife’s house.

December 2, 2013

Covering Children’s College Costs in California Divorce Proceedings – In re Marriage of Humphries

by Lorna Jaynes

In California divorce cases, spouses often want to determine not only basic child support issues, but also how to cover future expenses related to their children’s higher education. In In re Marriage of Humphries, the Fourth District Court of Appeals addresses a dispute about college expenses.

The Humphries married in 1990 and had three children before separating 16 years later. Ms. Humphries obtained an emergency protective order against her husband under the Domestic Violence Protection Act in 2006. The couple later entered into an agreement in which Ms. Humphries agreed to drop the protective order and provide Mr. Humphries with child visitation rights. In turn, Mr. Humphries agreed that his wife and children would remain in the family’s residence and that he would pay various forms of support, as well as paying for the children’s private school education. Mr. Humphries further agreed for each child to “pay for four years of undergraduate education at a certified university of the child’s choice, at the rate of a school in the UC system in California” plus related expenses, provided that the child was a full-time student and maintained at least a 2.5 grade point average.

Ms. Humphries subsequently filed for divorce from her husband in 2008 and also sought an order requiring him to pay spousal and child support. The parties later entered a stipulated agreement providing that Mr. Humphries would “continue to support [Ms. Humphries] and the children.” Following additional litigation, they entered another agreement, this one stating that Ms. Humphries would be named joint custodian on three separate bank accounts – one for each child – and that the funds would be used to cover the children’s college tuition and expenses.

May 1, 2013

Support Awards and Earnings Capacity in California Divorce – In re Marriage of Lim

by Lorna Jaynes

In California divorce cases, courts typically calculate the amount of any spousal and child support awards based on not only the spouses’ current earnings, but also their respective capacities to earn. As the Sixth District Court of Appeals explains in In re Marriage of Lim, the latter figure can be difficult to determine for a spouse working in a field that requires “excessive” hours on the job.Carrasco (husband) and Lim (wife) were married in 2003 and separated eight years later. They had two children under the age of five at the time. Carrasco was a college professor with average monthly earnings of more than $9,000, while Lim worked as a partner in a law firm, earning more than $27,000 a month.

The parties resolved all of the issues related to their divorce, including the decision that Carrasco be given primary physical custody of the children, with one exception: the amount of temporary spousal support and child support Lim would pay to Carrasco per month.

Lim explained to the court that she had been on a leave of absence from her job for medical reasons and intended to return, working 80 percent of her previous hours in order to aid her children’s transition following the divorce. As a result, she expected to earn about 80 percent of her previous salary, or just over $22,000. Based on the 80 percent earnings figure, the trial court ordered Lim to pay temporary spousal support of $2,705 and monthly child support of $1,568. Carrasco appealed the decision, arguing that the support payments should have been calculated based on Lim’s full-time earnings capacity.

On appeal, the Sixth District ruled that the trial court did not abuse its discretion in using the 80 percent earnings figure to calculate the support orders. Noting that “it has long been the rule in this state” that courts may consider a spouse’s earning capacity in determining support, the court further explained that “the court’s determination of earning capacity must be consistent with the best interest of the children.”

April 3, 2013

Court Says Wife Can’t Get Spousal Support Because of Domestic Violence Conviction – In re Marriage of Priem

by Lorna Jaynes

A criminal conviction is a serious matter that may not only come with significant fines and even jail time, but also have other far reaching effects. For example, as California’s First District Court of Appeals explains in In re Marriage of Priem, a person convicted of domestic violence may be barred from obtaining spousal support in the event of a later divorce.The couple was married in 1999 and had two children before divorcing more than 10 years later. A trial court ordered Husband to pay Wife more than $14,000 per month in child support as well as a portion of her attorney’s fees. The court declined Wife’s request of spousal support, however, finding that she was not entitled to such support as a result of a history of domestic violence toward Husband. Specifically, the court noted that Wife plead no contest to a misdemeanor for battery committed against a spouse in May 2008.

On appeal, the First District explained that California law “creates a rebuttable presumption that spousal support requests are not to be granted to spouses who have been convicted of domestic violence during the five years preceding the filing of a petition for dissolution.” Essentially, according to the court, the law is designed to ensure that “victims of domestic violence not be required to finance their own abuse.” A reviewing court may consider the other spouse’s domestic violence history as well as any other factors that may weigh against the presumption in contemplating a specific spousal support request.

The Court rejected Wife’s argument that the trial court wrongly denied her support request based on the 2008 battery because she pleaded no contest to this crime.

Under Penal Code section 1016, a no contest plea cannot be considered an admission of the crime in a civil suit stemming from the act on which the plea was based. Criminal defendants plead no contest for a wide variety of reasons, including bargaining with prosecutors, and the law is designed so as to limit any disincentives to making the plea. Here, the Court found that the spousal support proceeding was not based on nor did it “grow out of” the alleged battery in 2008. As a result, the lower court did not err in denying Wife’s support request.