In addressing the issue of spousal support in dissolution cases, the Court follows standard procedures. The dominant guidance comes from Family Code (FC) Section 4320, which sets forth a mandatory schema of 14 factors–including “any other factor”—that the Court must apply to determine post-judgment support. The application of these factors, moreover, has been interpreted and fleshed out by prior decisions, and so has the way in which the Court exercises its discretion with respect to amount and duration of support.
But as we all know, dissolution cases sometimes present atypical fact patterns where case law does not directly apply. Similarly, the facts of any given marriage may represent a substantial variation on conventional arrangements, thereby confounding the relevance of a “one-size-fits-all” approach. These variations complicate the determination of post judgment support, leaving the Court no other choice than to exercise discretionary judgment and make a reasonable determination of support based on the facts at hand and advocacy.
The following case that a colleague recently shared with me is an excellent example of this very point.
A couple seeking a divorce had been married for 21 months. For the entirety of their marriage, the parties were unemployed and both living with and supported by the Husband’s parents. Only after the DOS did the Wife land two jobs with a combined gross of $5K per month. Husband remained unemployed after DOS and continued living with his parents. Two weeks before the case went to trial, however, Husband found a part-time job with a gross pay of $135/week.
At trial, Wife’s lawyer argued that the couple had no marital standard of living (MSOL). Throughout the marriage, both parties had been supported by Husband’s mother and Wife did not become employed until after separation. Moreover, Husband was still living with his mother at the time of trial, which meant that Husband had the same standard of living post separation as he had during the marriage. In the end, the judge agreed with Wife’s lawyer and voided claims from either party for post judgment support (i.e., judge did a mutual permanent termination of spousal support.)
As this case illustrates, the Wife’s attorney used an atypical marital fact pattern—namely, the spouses’ lack of employment during the length of the marriage—as the centerpiece of an argument against the awarding of post judgment support to either party. Portraying this fact pattern as evidence of the couple’s lack of an MSOL, the Wife’s attorney succeeded in influencing the Court’s discretionary decision regarding permanent spousal support.
Though the determination of post judgment support relies on guidance from case law, it cannot do so in all situations. Indeed, I believe that there are case law exceptions or modifications of standard support determination for all of the following atypical fact patterns:
- depressed incomes and lifestyles during marriage due to educational endeavors necessary for career advancement.
- extra effort or overwork during marriage to achieve early retirement or simply to “get ahead.”
- disability of spouse: when does the obligation for support pass from a former spouse back to society in general? (Wilson) [Duration possibilities: Up to about 15 years of marriage, support lasts as long as the marriage. After 15 years, support likely lasts forever. These duration possibilities reflect reasonable expectations: the longer the marriage, the greater one’s expectation for lasting support.] [Amount possibilities: Calculate economic resources of each parties—cash flows as well as balance sheet—including marital standard metrics, then look to unique, direct costs of the disability, measured either by actual out-of-pocket costs or by comparable care costs—e.g., the cost of skilled nursing or convalescent care. If disability costs are viewed as community obligation, they are paid by each party’s resources, either in proportion or pro-rata.]
- development of employment related skill sets or lack thereof
- opportunity to develop desired/desirable career for dependent spouse [the longer the marriage, the greater the obligation to provide retraining and education for career, not just job].
- offset for separate residences comparable to Marital Residence (discounted for living apart).
- non-cash savings, such as stock/options or defined benefit pension funds, that do not show on tax returns but still provide wealth and asset base. (Defined contribution pension deferral will show on tax returns.)
- inflation over time for standard of living—e.g., cost of housing in Silicon Valley over the last five years: up, then down
- COLA for standard of living in a specific geographic area (the same number of dollars in Kansas City or Bakersfield go a lot further than they do in Cupertino.)
- duration of support: length of marriage; coverture; natural phase points in life (career progression, majority of kids, social security); age of parties; Gavron notice and compliance with legal obligations under FC § 4330; plan or prior agreement of parties.
In any of these exceptional situations, advocacy and its potential to shape judicial understanding will play a crucial role in the determination of post judgment spousal support.
Whether the fact pattern at hand is typical or atypical, I always advise those advocating for or against the standard idea of spousal support to recognize and use—either as a touchstone or as a foil—the public policy assumptions implicit in our statutory schema. For though the law constantly adapts to changing social patterns, changes in society generally outpace those in law, which means that assumptions in the statutory schema about social patterns or formations—e.g “family” or “marriage”—may be out of step with the actual patterns and formations seen in dissolution cases.
Imagine, for example, a statute in which the term “family” implicitly refers to a unit consisting of an employed father and a non-income producing, stay-at-home mother. Would this characterization of “family” be applicable in cutting edge, expensive Silicon Valley where 72% of all two-adult households consist of (and very often, rely on) two solid income earners? The social reality of any given “family,” in other words, can be quite different from the social reality presumed in the statutes, and in these instances, advocates always do well to acknowledge and mine this disconnect when making a case-specific claim about spousal support.
Considerations of spousal support must always attend carefully to the actual circumstances of any given family. At one time, young adults regularly “left the nest” at the age of emancipation; nowadays, most are economically mandated to reside with their parents well past the age of eighteen. Does this mean, then, that the Payor of spousal support will also be supporting a resident and still dependent (i.e., unemployed) adult child? Or that the Recipient of spousal support may also be doing the same?
And guess what: when retired Baby Boomers decide to divorce, spousal support issues become especially challenging. By definition, retired Baby Boomers no longer have income cash flow out of which support is typically paid. How, then, does one or the other retired party pay spousal support in a family unit where neither party is an income earner?
Recognizing the specificities of a family’s circumstances is thus an important beginning. The next and equally important step is to locate these circumstances within a demonstrated pattern of family dynamics since such behavior patterns will also powerfully affect considerations of post judgment support.
Weeding out the short term marriages and the ‘forever’ relationships, we are left with a middle range of actual family-defining behaviors. Are we dealing with two working professionals, or with a family made up of one income earner and one stay-at-home parent who occasionally works, but only when necessary and/or convenient? Are both spouses actively engaged in their careers, or has one spouse put a career on hold until the children are able to drive and/or care for themselves? Is this a child-less couple and a second marriage for each spouse? And does this same couple also have part-time childcare responsibilities that play an important role in family dynamics? Or is this a gender flip situation in which the wife is the primary income earner for her stay-at-home husband and their children? (Where is gender chauvinism when you need it the most!)
The counter point to these observable patterns is the expectations of the parties themselves—i.e., their own understanding, explicit or implicit, of their roles and their future as a couple. However unreliable such expectations might ultimately turn out to be, they should be considered when addressing the issue of spousal support. Was it a case of taking turns: “I’ll put you through school and then you will put me through school”? Did both parties desire a ‘Leave it to Beaver’ situation in which economic success would lead to one spouse leaving the work force to become a homemaker (or worse yet, where the expectations were tragically opposite, with one party wanting a classical relationship, and the other spouse branding that situation as personally or economically unacceptable?) Or were the parties’ expectations more in the direction of a “trophy spouse,” a situation in which one party was to be publicly recognized less as an equal marital partner and more as personal reward for the other party (i.e., a “trophy wife” or a “sugar daddy”)?
Both the family behavior patterns and the marital expectations of the parties themselves lead to a number of questions with no easy answers. For example, how are we to consider behavior patterns and expectations in a family when the parties are on their second or third marriages, or when they are approaching the end of their economic careers? And how do these concerns affect the application of the FC 4320 factors, since repeated trips to the altar surely affect the thinking of the parties, and a short working life for older spouses removes much economic latitude from the spousal support issue?
©2012 James Frederic Cox