Terry (not his real name), who has been married 12 years, earning $150,000 a year, consults with me saying he wants to stay out of court, but if he “has to” he is willing to let a judge decide what is fair for him to pay in spousal support to his wife Julie (not her real name). He says he and Julie are negotiating the amount he would pay, and she is requesting at least $2,500 per month. He wants to know if this is a fair amount, and says he will be hard pressed to pay her $2,500 since his goal is to keep the family residence and buy out Julie’s 50% interest. By buying her out, he has to refinance their current loan, borrow more money, and incur a higher mortgage payment.
Terry asks me, “Can’t we just put numbers in a computer program to figure out spousal support?” Unfortunately, while there are a few computer programs that judges use to figure out the required “California guideline child support” and there is an option in that program to calculate “temporary” spousal support, that spousal support amount is rarely the correct number going forward for a final settlement.
There is so much more we need to discuss before I can help Terry even start his discussions with Julie. I find out her part-time income is selling beaded earrings and bracelets online. She has been staying home with the kids to save childcare expenses. I ask Terry, “Does Julie have any college degrees or prior work experience?” and “Would she be able to return to any prior employment without additional education or training?”
Terry advises me that Julie used to do bookkeeping many years ago before there were so many computer programs for that. I let him know that we need to consider Julie’s future living expenses, and I ask about whether they took many expensive vacations during marriage (these are called “marital standard of living” considerations). Terry also mentions that Julie has had some bouts of depression and anxiety in the last few years. It is important to find out if these health concerns would prevent or inhibit her ability to work. We also need to estimate her future health insurance costs if she loses Terry’s company medical insurance coverage due to the divorce. This does get a bit complicated!
While yes, I let Terry know that I can “run some numbers” on a computer, that unfortunately is not going to be “THE” answer that he needs because my numbers are usually not representative of the entire picture. He then tells me that Julie is one year short of a law degree, but she quit before their first child was born 10 years ago. He thinks she can work for an attorney as a legal assistant and have a substantial income. I mention the possibility of him financially assisting Julie to finish law school and take the bar exam so that her earning ability is increased, thus reducing his future obligation for spousal support, and maybe even the number of years he would pay support.
While Terry ponders that information, he asks, “If I do have to pay spousal support and we agree on an amount, when will it end?” My response was something like, “Oh Terry, that’s a really tough one–even judges on the bench hearing spousal support hearings and trials for many years cannot answer that one!” (At this point, I think he wonders if it was a waste of money to consult with me since I have no real answers for him.)
I remind Terry that if any of his friends or family members tell him that spousal support only lasts for “half the length of the marriage” that he should not believe them. I show Terry the Family Code section 4320 factors that every judge must consider and take testimony about before making an order, and there are about 14 of them! Factors considered include those discussed above, like earnings of the parties, earning capacity, health, age, education, standard of living during the marriage, and yes, the length of the marriage. There is one factor that says a judge can consider using a “half the length of the marriage” standard if the marriage is under ten (10) years. My duty is to let him know that I have seen judges ignore that factor if a spouse is injured, unhealthy, uneducated, and otherwise unable to be self-supporting within that time frame. And it is not a binding timeline anyway, just something any judge has “discretion” to consider.
But wait, there’s more! Additional Family Code section 4320 factors that courts are required to consider are any documented history of domestic violence, emotional distress as a result of domestic violence during the marriage, and the judge can look at whether either spouse has other separate property assets or income to live on (like trust income, or a free home to live in that is owned by a parent of the spouse).
Then there is what I call, the “kicker.” Family Code 4320, section (n) says the court can consider “Any other factors the court determines are just and equitable.” Open the gate wide now, because there is literally nothing at all a judge cannot take into consideration. (Was Terry’s mom harassing Julie daily at the family residence, leading to Julie’s depression and anxiety? Well, the judge could now take testimony on that if he or she believes it’s relevant to Julie’s ability to become self-supporting.)
By the end of my meeting with Terry, he was a bit overwhelmed, but there was hope I could offer. We discussed using a Collaborative Divorce process where Julie is separately represented by a Collaboratively-trained attorney with prior experience on various spousal support outcomes. We could involve mutually agreed upon mental health coaches and/or neutral financial professionals to look at emotional concerns and property division settlement options. This would save them both the cost of hiring different experts to testify in court at $500 or more an hour, while also paying their litigation attorneys’ fees to cross-examine each expert, and waiting 90 days for the judge to make a ruling. And the ruling could be quite unfavorable.
Part of a Collaborative Divorce for Terry and Julie could involve a Collaboratively- trained vocational evaluator as part of the team, working with Julie to determine her future goals and available employment options. In my experience, I have seen these vocational evaluations present ideas for exciting career choices that the attorneys did not even know existed, yet the positions paid quite well, and my clients were happy to pursue them.
When Terry left my office, he didn’t necessarily get the “bottom line” answer for his spousal support questions, but he did receive the guidance he needed to avoid further cost and frustration in finding a solution. He knew he wanted to avoid litigation in this area of California law which has the biggest margin of inconsistency, and is open for complete judicial discretion by the judge who hears the case.
Terry expressed that he wanted to avoid the court process more than ever now, so we scheduled a Zoom meeting with Julie and another Collaborative attorney from our website to review for about 30 minutes what the process would entail. He agreed that this approach would consider both his and Julie’s mutual goals and he was hopeful for an amicable resolution.
If you would like to know more about Collaborative Divorce, feel free to contact any of the professionals listed on this website for more information. We are ready to assist you in making the best choices for you and your family.
Jeanne Browne, JD is an attorney practicing in Sonoma County. More information in her bio on the “Find A Professional” page.
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