By: Baruch Kreiman, Esq.

 

No one likes paying alimony to their ex. Sometimes it’s warranted and understandable, but paying support to an ex-spouse is never enjoyable. And sometimes the spousal support payment ordered—especially temporary spousal support—can be very high.

I’ve heard a number of clients tell me “l’ve had enough of working all day long paying his/her bills while he/she sits at home, why don’t I just quit or take a part-time or minimum wage job to stick it to her/him?”

This is an emotional & impulsive response, but why is quitting a job to avoid alimony a truly awful idea? The answer lies in a few powers that the Court has which can make this snap-decision backfire with major consequences.

How the Court Handles Changes in Employment

The Court has the power to make certain assumptions about a spouse’s income when the Court orders spousal support. Put simply, if a party comes to the Court saying “I am no longer making $100,000 per year, I am pursuing my life-long dream as a burger-flipping technician, please reduce my alimony.” The Court can say “No, we know what you are capable of making, and for the purposes of alimony that is what we will plug in as your income regardless of your new situation”.

The Court also appoints an expert under Evidence Code section 730 to evaluate the earning power and potential of a party and uses that report to determine income for the purposes of the alimony calculation, regardless of what that spouse’s actual income is.

While quitting a job to spite a spouse is not the answer, the law is very different when the circumstances are involuntary, i.e. when a spouse was fired or laid off, and is making reasonable efforts to find a similar job but either found something less lucrative, or is still looking. In cases where the income downgrade was not the result of a voluntary decision, the current situation will be the more important consideration.

What About Retirement?

California’s alimony system does not require a spouse to continue working past age 65 just to pay alimony. Note, make sure you consult with a California-licensed Family Lawyer about stopping or reducing alimony before your 65th birthday, so that everything can be properly set in motion.

What About Overtime?

A last point to consider is that while you cannot quit your job to avoid spousal support, there is no obligation to labor 80 hours per week to support your ex-spouse’s lavish, unemployed lifestyle.

The California Supreme Court in Marriage of Simpson (1992) 4 Cal. 4th 225 made clear that the “Established employment norms, such as the standard 40-hour work week, are not controlling but are pertinent to this determination. In certain occupations, a normal work week necessarily will require in excess of 40 hours or occasional overtime and thus perhaps an amount of time and effort which may be considered reasonable under the circumstances. A regimen requiring excessive hours or continuous, substantial overtime, however, generally should be considered extraordinary.”

Even if a party had customarily been working a significant amount of overtime throughout the marriage, Simpson and the cases that follow in that vein make clear that the Court will not lock you into that overtime for the purpose of paying higher support to an ex-spouse.

The Court’s Common-Sense Approach

The Court has methods to deal with a spouse that tries to “hide the ball” and make impulsive and reckless decisions to hurt an ex. However, the Court also has a number of mechanisms to address the real concerns that can arise and reduce a spouse’s income, and those can be addressed fairly.

© Alphonse F. Provinziano, Esq.

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