Spousal Support and Justification

#1

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.

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#2

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.

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#3

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.

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#4

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!

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#5

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

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#6

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.

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