One of the most frequent threats that men (and sometimes women) make at some point in the divorce process in California is to quit their job before the divorce can be finalized. This threat is usually made right around the time the person in question has figured out that they may be forced by a court to pay spousal support for many years – or even indefinitely – and that California has among the most generous spousal support laws in the nation. Furthermore, the current income of both parties is a key factor in determining the spousal support amount.
Thus, the logical progression in some divorcing spouses’ minds is, well if I quit my job and am not making any money at the time the Judge sets spousal support, then I won’t have to pay any spousal support (and, hey, maybe she’ll have to pay me!), and then, after those orders are made, I can just go back out and get a job but never have to pay a dime in support. Right?
Wrong. Despite the “bright idea” wishful thinking of many a divorcing spouse, this is not how spousal support works in California.
The Difference Between Setting Temporary and Permanent Spousal Support
First off, it is important to understand the difference between temporary and permanent spousal support and specifically how these amounts are determined.
Temporary, or pendent lite, support is available during the time of the divorce proceedings, and can be sought at the beginning of a divorce proceeding and stay in effect until the divorce is finalized. Judges typically set temporary spousal support by feeding both spouses’ incomes into a county-wide formula which spits out a number that partially equalizes the income. Generally, temporary spousal support hearings do not involve much other evidence beyond that.
If one spouse decides to quit his or her job just before this type of hearing, her or she may face questions from the Judge regarding that interesting timing. That spouse is also stuck with not having an income, which for most is arguably worse than having to pay some of it to the other spouse.
In any case, this is a temporary hearing, and there will still be the question of setting permanent spousal support at trial. Permanent does not mean “forever” but rather a final number for the divorce, even though, as we will see below, even that might not be final.
Permanent Spousal Support Looks at Income Potential (Among Other Things), Not Just Income
When setting permanent spousal support in a divorce trial, the Judge will be looking at a number of factors, not just income. For those spouses hoping to slide by without having current income until the time the trial is however, they should note that a primary factor the Judge will look at is “The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.”
Thus, while income is one part of it, so is that party’s “earning capacity,” which, just as it sounds, is the amount of income the party could go out and earn, even if they are not doing so at the moment. So if your husband has been managing a restaurant for 10 years, then decides to stop working during the divorce, the court may well look at how much money he could be making doing similar work, and not make much of the fact he is currently earning nothing by choice. Understand, however, that this goes both ways, and a “supported spouse” may be held to his or her earning capacity as well in setting support.
Similarly, the court will look at a number of other factors in setting spousal support, including total assets and obligations held by each party, the contributions each party made to the other during the marriage, and the standard of living during the marriage.
Bottom line, no, voluntarily avoiding income during a divorce does not mean one avoids paying spousal support.
You Can Modify Support Even After the Divorce is Final
It is also important to understand that spousal support obligations can often be modified after the divorce is finalized, even years into the future, unless the parties both agreed to not allow for such modifications to be later made. California courts look to see whether there has been a “material change of circumstances” in modifying spousal support, which can be modified both upwards or downwards, or even terminated altogether.
One very common “material change of circumstances” is when a paying spouse obtains a higher paying job than was held at the time spousal support was set. This is not necessarily always successful grounds for a modification, but certainly where one spouse intentionally had low or no income when spousal support was set, a higher paying job down the line may well be sufficient reason for the court to later increase the amount of spousal support owed.
Guidance on Your California Spousal Support Questions From a Westlake Village Family Law Attorney
If you would like to learn more about how our office can provide guidance on your spousal support issues or any other California family law issues you are facing in Ventura County or Los Angeles County, contact the Zonder Family Law Group office today at (805) 777-7740 or (818) 877-0001, or schedule your strategy session using easy-to-use online form here.