Determining Spousal Support

Modifications for spousal support or initial spousal support orders in Santa Clara County is at the the main Family Law Court House is located at 170 Park Center Plaza, San Jose or the other Court House locations one in Sunnyvale and one in Morgan Hill.

Spousal support in California is determined by Family Code 4320 and its subsections. Family Code 4320 which must be followed by the Courts in The State of California. Family Code 4320 provides that the court shall consider the extent to the earning capacity of each party is sufficient to maintain the standard of living established during the marriage. The court needs to take into account:

• the marketable skills of the supported party;
• the job market for those skills;
• what the time and expense will be required by the party receiving spousal support to obtain the education or training necessary to have the skills for a job;
• if the person receiving spousal support requires retraining or further education to obtain employment.

The court also looks at what periods of unemployment by the supported party during the marriage and how that impacts employability. The extent that the party receiving support contributed, if at all, to the education, training or license of the other spouse.

A major concern to the court in imputing income for spousal support or making spousal support determinations is the incomes of the respective parties as of the date of the making of the order, and the ability of the supporting spouse to pay spousal support. The court will take into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living.

Once the above has been considered by the court, then the court will look to what the marital standard of living was during the marriage. This consists of looking at debts and assets of the marriage as well as the separate property of the parties. The court will want to know how long the marriage was and what is the ability of the party who would be receiving spousal support to obtain in any gainful employment. The age and heath of the parties are an important consideration as well. Lastly but very importantly is any history of document domestic violence.

California law is clear on the subject of domestic violence. If a party to a dissolution action is convicted of domestic violence, criminally, he or she is deemed to be a domestic violence abuser. If this is the case, the party convicted of a criminal domestic violence charge is not entitled to receive any spousal support. The key is a criminal conviction, a CLETS Domestic Violence Restraining Order is not enough.

If a spouse who is ordered to pay spousal support artificially reduces their income either by redirecting the income back into a business and living off of their assets, takes a lower paying position, or quits their job, the court may impute income to that spouse. Imputation of income is best described as the court stating to a spouse that they have taken steps to reduce their income or refuse to work when they can and that the court will determine what spousal support should be and state that they should be making "X" amount of money even when they are not and use that number for the basis of determining spousal support.

The case in California which best describes this is the case of In re Marriage of Berger (209) 104 Cal. App. 4th 1070. In this case the husband of the wife reinvested his income back into the business in an attempt to artificially show that he did not have any income. What the husband did was that he was living off of his assets to support himself and that he was not using his salary and instead "banking" it. The Court found that for purposes of calculating support it made no difference whether the husband was paying his bills from his salary and leaving his savings untouched, or paying them from his savings and "banking" his salary.

In essence, the court found that income should be imputed to the other spouse. But the complaining party must prove both of the following: 1) ability to earn a certain income; and 2) the opportunity to earn that income on a going-forward basis. This does not mean a work efforts order. This requires a expert for a vocational evaluation. The expert must perform an analysis of the spouse's qualifications, background and skills. This is necessary to prove the first aspect which is just what can the recalcitrant spouse do to make a living. The second part is to perform an analysis of earning opportunities currently available to the spouse refusing to work and what they may be expected to earn.

From the Berger decision we learn that income cannot be imputed based upon a party's earning "capacity" absent proof of both ability and opportunity to earn the income on a going-forward basis. Another case in California, In re Marriage of Bardzik (2008) 165 Cal.App.4th 1291 [83 Cal.Rptr.3d 72], held that the burden of proof for imputation of income cannot be met by evidence establishing merely that a spouse continues to possesses the skills and qualifications which had made it possible to earn a certain salary in the past even where it was undisputed that the spouse had voluntarily left that prior position. Remember it is on going ability to earn and opportunity to earn.

Unfortunately it is this second requirement that is most often ignored. All family law attorneys in Santa Clara County and elsewhere in The State of California have seen or been involved in a case where despite a level income for a substantial number of years dropped in 2008 or 2009. Where this happens the spouse requesting spousal support will be claiming that support should be paid based on the pre-2008 income. The opposite will be claimed by the paying spouse who will argue that their level of income prior to 2008 is no longer realistic and that support should be based on actual income as of the date of the calculating support.

The actual question is, that while a party might be successful at using pre 2008 income to the paying spouse, is this realistic? This is where the second requirement comes in. Hence the vocational evaluation. Remember there is a vast difference between hiding income and not actually having in the income or ability to earn a higher income.

The Court must use the same analysis in the case where the paying spouse wants to reduce spousal support and requests the court to impute income to the spouse receiving spousal support. In other words, if there is a non working spouse, the paying spouse is saying to the court, "use a income level that the non working spouse could earn to determine what spousal support should be." Here the working spouse who wants support reduced must show that the supported spouse who refuses to work can earn a living at some level which is not based on prior income.

Often parties will use old and never used college degrees to attempt to show ability to earn. They will also provide evidence of part-time or temporary office work, to support their position that the supported spouse has the ability to currently earn full-time income. However while a non-working spouse's qualifications being impressive on paper unless the paying spouse proves that those qualifications equate to real world jobs that are currently available on a going-forward basis for that individual the request will fail.

This was addressed by the court in the case of Marriage of Bardzik (2008) 165 Cal. App. 4th 1291. Here the Mother testified that she retired after 20 years of employment and that because of stress on the job as a jailer. She further retired at age 43 to spend more time with her children. The Father who was the supporting spouse took the position that the mother was able to work, that she voluntarily terminated her employment and requested that the trial court impute income to Mother based on her final salary as a deputy sheriff just prior to her retirement.

In this case Father needed to show ability and opportunity for Mother to earn. However there was no vocational expert used by the moving party. No evidence was presented by the moving party that the mother had any vocational abilities or any opportunities she might be able to generate income. They did not use a vocational expert. The court refused to grant father's request for relief. This result was because there was no showing that the supported party could return to any employment as a deputy sheriff or that there were any opportunities for her to work in any related field. In essence, Father failed to show any evidence necessary for imputation of earnings to Mother. The most damaging thing that father and his attorney did to father's case was that he failed to ask Mother to undergo a vocational examination even though Mother was willing to stipulate to a vocational evaluation.

Had father in the case of Bardzik spent the money and obtained a vocational examination report and the testimony of an expert witness, this case most probably would have resulted differently. He would have been able to present proof to showing that his spouse had the ability and opportunity to earn. Remember it is the ability and opportunity to earn.

An example of a different result just because there was a vocational expert is in the case of Marriage of Mosley (2008)165 Cal.App.4th 1375. Here the appellate court found for the paying husband/father. The moving party retained the services of a vocational evaluation expert and an evaluation was performed on Mother, and the testimony of a vocational expert as to what Mother could earn.

Here Father used vocational expert testimony to demonstrate that his ex wife had an approximate earning capacity of $95,000 per year to start. The vocational expert also testified that Mother could earn $16 to $20 per hour as a paralegal. The appellate court stated that Father's burden did not include the need to actually show that his ex wife would have gotten a given job if she had applied. The appellate court said that if there is the ability and the opportunity to work, earnings can be imputed, because a party could easily sabotage the process of actually securing a job.

The vocational expert's testimony helps determine the ability and opportunity to earn and/or to help establish earning capacity.

When a spouse has been given a Gavron Warning, they have a obligation to become self supporting and to make efforts to do so. If they refuse to do so, or they artificially reduce their income to defeat spousal support or to drive up the amount they feel they should be receiving the court may impute income.

However, imputing income is a two prong test. You will need to show both prongs and this will require a vocational expert. The vocational expert will be able to show earning capacity and ability to work. The expert will be able to show what employment is available to the non working spouse and what they could expect to be earning. There is no requirement that the paying spouse show that the receiving spouse actually could get a job. If there is the ability and the opportunity to work, earnings can be imputed, because a party could easily sabotage the process of actually securing a job.