Spousal Support and Justification

My spouse currently makes a six-figure income as do I, but I make about twice her amount. At the time of the divorce, we will both have our houses paid for and an equally large nest egg in the bank for each of us. We have one minor with joint custody. Our expenses as a family of 3 are less than $1k per month. From my research, alimony is paid when the other spouse doesn’t have a job or the standard of living can’t be met upon divorce. Neither of these apply here. Based on expenses plus her lucrative career and income, is she entitled to alimony from a 16-year marriage? I don’t think so given her living situation but wanted to get further guidance. Any help would be appreciated.

If you make twice as much as your spouse, it’s highly likely you will end up paying some alimony to her. The marital standard of living isn’t strictly defined as monthly expenses. You have to take into account your ability to have bought and paid off two houses and accrue large savings during the marriage. I have to assume her ability to continue saving at the same rate as during the marriage will reduce post separation. There are a number of other factors to take into account, and you can get a brief thumbnail sketch of those factors in the following article:

https://cristinlowelaw.com/spousal-support-basics-what-you-need-to-know/

If your goal is to not pay any spousal support, then you might want to consider mediation. That process will enable the two of you to take a creative approach towards resolving your issues and allow for out of the box thinking. The law doesn’t always get you the best result for your family, and mediation gives the two of you the option of working on a better solution.

Hi Cristin

I made approximately $120,000 in voluntary and involuntary overtime last year ($233,000.00 pre-tax for the year)

She chooses to work part-time and made about $80-90k last year. She is wanting spousal support based on these numbers.

The overtime is not a given. In fact, we have over hired and the overtime is drying up. She, can make anywhere between $115,000 and $135,000 a year.

Will the court award support based on my salary with overtime and her working part time?

Thanks so much for what you do.

Unfortunately, there isn’t a clear-cut answer to this question. Judges have wide discretion with temporary (pre divorce judgment) spousal support based on a party’s “need” for support (based on the marital standard of living) and the other party’s “ability” to pay. Most judges, however, rely on a support calculator program such as DissoMaster, XSpouse, or SupporTax. Some counties put it in their local rules that these programs are presumptively the correct amount of support.

Therefore, your best “defense” will be a multi-part argument:

  1. She should be “imputed” with full-time wages. Imputation means that we pretend she is earning X based on her earning capacity. To have a solid argument, you will need to demonstrate her ability to earn full-time wages, as well as show that there are current opportunities available. This isn’t exactly easy to prove at a first hearing, so this is a long-term process. For example, someone who has signed a non-compete clause for their part-time job isn’t going to have the ability or the opportunity to work full-time.

  2. If the judge isn’t going to impute her with full-time earnings, she should be placed under a “seek work order” to look for full-time employment and given a “Gavron” warning, which means that the judge formally admonishes her and advises her of her duty to become self-supporting to the best of her ability.

  3. You will want actual proof of the reduction in overtime. Documentation from your supervisor, HR department, etc. about the reduction of O/T, the restructuring of the company, etc.

  4. You will want an order that is flexible and based on your actual earnings. There are a few articles on this issue on my website:

https://cristinlowelaw.com/how-is-bonus-income-treated-in-spousal-support-situations/
https://cristinlowelaw.com/california-child-support-in-ten-steps/ (step #2 explains bonus support - the methodology and rationale are identical for both child and spousal support when it comes to bonus support)

Hope this helps!

hi
what if my income is non taxable? My only main source of income is from IHSS for the care of my disabled daughter. When using your calculator it shows I will get no spousal support.I have been at home for 11 years with children and home-school three other minors. Is it still possible for me to receive support?
thank you

The same general rules apply whether or not you have taxable or non-taxable income. Temporary spousal support is based on disparity of income post-tax. In your situation, your non-taxable income is your net income, and your spouse’s income is gross income.

My husband quit his job voluntarily. He was making a six-figure salary. I had been out of work for many years for childcare and got an entry level job as my first job back at work. He is now saying he wants to apply for entry level jobs or work for minimum wage and doesn’t want to return to the type of work he was doing before that was very lucrative. However, he has not been successful at getting these kind of jobs. He is a few years from retirement. When we file, am I going to have to pay him alimony?

I make 132k/year with a non-guaranteed bonus of approx 20k. My spouse currently does not work, and has only had occasional part time jobs during our 25 year marriage. We have 4 kids, but only 2 still live at home, and only 1 is a minor. I suggested a total child/spousal support situation where I would give her 70% of my income and I would keep 30%, which I feel is very generous. She’s asking to maintain current level of income, meaning she’s not willing to work and basically wants 100% of my current income.

I understand that she’s wanting to stay at home (she homeschools our 18 year old senior and 16 year old junior) and be there for the kids, but it doesn’t sound reasonable for her to expect me to raise an additional amount of income to provide for my own living expenses. I believe we will have joint custody with her being the primary custodian.

Everything so far has been amicable. I’m currently still living at the house in a separate room, but am wanting to move out as soon as we have the financial arrangements figured out.

It is always possible, but it’s very unlikely that you would have to pay him alimony in the situation you described. To protect yourself, you’ll want to gather evidence of his voluntary resignation. The argument is essentially that you should not have to bear the cost for your husband choosing not to work. I think the more difficult question in your situation is whether YOU try to request spousal support based on his earning capacity (the goal of which would essentially be to force him to return to work, since he can’t pay support based on fictitious earnings), as I don’t know how you’ll be able to survive financially on a single minimum wage income.

There wasn’t a question actually posted here, so I’m not quite sure how to respond to you directly. That said, what you’ve described is one of the more common scenarios for divorcing couples where one spouse did not work and the other spouse was the sole breadwinner, so I think there is general value going through this problem, since it’s a common one. Please feel free to post a specific question, and I’ll do my best to answer.

In a traditional litigated divorce (where you go to court and the judge makes orders), support is fairly cut and dry - it’s based on a formula, which we commonly refer to as “guideline support.” Child support is always calculated first and has two components: timeshare disparity and income disparity. Spousal support is then calculated with the “leftover” money and the guideline formula does vary slightly, depending on where you are in California (there are different spousal support guideline formulas, but in reality, the variations in the formulas are pretty small). In general, you can expect to pay anywhere from 40% - 48% of your net income, which is after taxes (not necessarily what you voluntarily choose to withhold on your paycheck stub). The supported spouse is expected to pay for 100% of their own living expenses with that guideline support, including food, housing, utilities, car loan/insurance, etc. **** Eventually, spousal support will be modified from “guideline” to “permanent” spousal support, and in general, permanent (meaning post-judgment, not always and forever) support will be LESS than the guideline amount.

In reality, this is disastrous, because let’s face it, no one in California can live at the former standard of living of $130K - $150K/year with $45K - $50K/year. For the paying spouse, they’re not in any better of a position either, with just over half of their income gone. But - the law essentially presumes to “spread the pain” equally. It’s a real problem with a single middle class income, as it doesn’t support two households. Something has to give, and usually that’s the house.

Your other choice is to get creative. That requires a lot of thoughtful negotiation, sacrifice, and effort. For the paying spouse, it’s a choice to pay significantly more than the Court would ordinarily order for a certain period of time in exchange for something - whether it is a guaranteed termination date of support, an automatic reduction in a certain period of time, more than 50% of the assets, etc. For the supported spouse, it’s a choice to continue living closer to the current standard of living in order to give them time to get back on their feet, let the kids graduate from high school, etc. in exchange for giving up something in the future. I’m oversimplifying the analysis, but I hope you get the general idea.

The reality is that you cannot be a divorced homemaker in California when your former spouse is earning less than $200K/year without significant additional assets - the numbers just don’t add up.

That said, you’re working with some pretty serious factors here. For most individuals who have never had to work during the marriage, entering the workforce after a significant time off (or perhaps never having been in the workforce previously) is more than a daunting prospect. It is terrifying, humiliating, and exhausting. They will likely never have the earning capacity of the breadwinner. Yet, getting a job is an incredibly important and healthy step that I am a huge proponent of (assuming that the supported spouse is not disabled and not yet of retirement age) as part of the divorce process.

First and foremost, even a minimum wage job will result in more net income for BOTH parties. If a supported spouse earns $1500/month, the support doesn’t reduce by $1500/month (though it will reduce). That means that it is only a “win” to earn any additional money, as both spouses have more money in their pocket. Second, the supported spouse needs to think about social security contributions (which, if they’ve never worked during the marriage, they don’t have any contributions of their own). Third, there is the issue of health insurance and how much better it is to have it through employment. Finally, there are no guarantees. Spousal support only lasts as long as the payor is alive and working at the same capacity as during the marriage. Disability, unemployment, and death are realities of life. Life insurance helps but doesn’t eliminate the problem. Kids need both parents to step up and be able to stand on their own feet as soon as possible. I don’t know that anyone wants to be that parent who HAS to live with their child because they can’t afford to live on their own.

I say this not to in any way diminish the value of what a homemaker has contributed during marriage. Contrary to what some might believe, there IS value. It’s an important role to raise kids (and an incredibly difficult job!). I don’t say this to in any way intimate that a homemaker/stay at home parent hasn’t “earned” the right to receive support, because that’s not true, either. What matters is that a supported spouse has to realize that relying on an ex spouse to financially survive is a really, really bad idea, regardless of how nice, rich, generous, amicable or caring the ex spouse might be.

My general opinion on this point of contention is that at a household income level of $200K or less per year, the supported spouse has to get a plan together to get back to work in a career-type job as soon as possible - that doesn’t mean “tomorrow,” but it means a serious and disciplined effort. The supported spouse has to be willing to cut expenses significantly, often times including expenses related to the kids. The supporting spouse needs to think long-term and realize that “any” job is not sufficient, even though it might be a short-term solution and consider being more generous and patient than what the law might require of them in the beginning. If both spouses do their part, in the long run, they can work out a solution that allows both of them to move on with their lives, financially secure, without coming back to court every few years to fight about spousal support.

I think you can ask any divorce attorney out there (including me), and they will tell you a good percentage of their business is litigating spousal support modifications. That’s a cautionary tale to BOTH the supported and the supporting spouses that you want to figure out a real solution to the spousal support issue. The reality is that spousal support cannot and will not go on forever, except in the rarest of circumstances. The supported spouse will retire, die, become disabled, lose a job, etc. Accept this reality and work with it.

Thank you so much. This is incredibly helpful!

I was married for just over 2 yrs, we have been separated for 2 months. I live in Nevada and she just moved from here to California. Do I owe Alimony?

Hi Shiloh,

Spousal support is based initially on income disparity. If you earn more than her, it’s possible you would owe support for half the length of the marriage. “Permanent” (meaning post-judgment, not forever) spousal support is based on a set of 14 factors found in Family Code Section 4320. That said, it takes six months to establish residency. You MAY be better off filing for divorce in Nevada. You’ll want to consult with a divorce attorney in both states to determine the best place for you to file. State laws vary, so you want to make the best decision possible for your overall situation and file in the state that gives you the most advantages.

My wife and I are both 60 yrs. old and started working for the State of CA around 1998. We were married in 2006 and are divorcing now. I left employment with the State of CA in 2015 and started drawing my CalPers retirement. She is still working and contributing to CalPERS. I am currently working in the private sector.

Is the CalPERS retirement income along with wages from my full-time job both part of the monthly income when calculating spousal support?

Do I have any claim on the value of the future income from her CalPERS retirement? Its value has significantly increased in the last 14 years since we have been married.

Thanks

Pension benefits (including CalPERS, military retirement, CalSTRS, etc.) relate to two different issues in a divorce: 1) property which needs to be divided if some benefits were accrued/acquired during marriage; and 2) income available for support.

For benefits that are being received at or after separation, this becomes a “mixed issue.” In your situation, your wife is entitled to a portion of your CalPERS benefits, as roughly 9 of the 17 years you worked for the state were during marriage. This entitlement begins immediately upon separation. The retirement income is ALSO income that needs to be considered when calculating spousal support. Let’s say you receive $6,000/month in CalPERS retirement income, and your wife is entitled to 25% of the amount, $1,500. Let’s also say that your wife earns $5,000/month in salary and you earn $10,000/month in salary. When calculating support, we would use your salary of $10,000 plus the $4,500 of your share of the CalPERS retirement income, as well as her salary of $5,000/month plus the $1,500 of her share of the CalPERS retirement income.

For retirement benefits that are not being drawn upon, this is a simpler property division issue. You’re entitled to one-half of the benefits acquired during marriage, period. In the future, you’ll be able to draw on your share of her benefits once the account is divided - you’ll have the choice to wait until she retires to receive your share (thus receiving the benefit of your percentage of her income, which theoretically should be highest at time of retirement), or you can segregate the account immediately and have full autonomy over when you choose to draw on it (and the income would be based on her current salary).

Will a judge automatically award spousal support when they see my FL 150 showing I make almost 100K while my spouse is making around 10k due to pharmacy school? She will be passing her pharmacy test and be making more than me within the year or so and wanted to see if it was better to wait and file for divorce until then or safe to do so now? She hasn’t expressed interest in asking for spousal support and neither have I and intend to complete the divorce out of court.

Stats:
Married for 6 years.
No kids
Financials are all separate
No assets, besides cars which are under our own separate names/credit.

Thank you. This text will be hidden

A judge will not “automatically” award spousal support, but if your wife requested support, it is highly likely the judge would grant it. It is also possible that if you did a “true default” divorce, the judge would reject your request to terminate spousal support (although the judge would not automatically order support - they just would not approve of your request). The safest way to proceed is to ensure you have a signed agreement for your divorce judgment via either an uncontested divorce or a default divorce with agreement.