Post-judgment spousal support is a tricky area for dual income marriages.

Not every single divorce case involves a stay at home parent and a working parent. In many cases, both parties are working, and not everybody has children. And in dual income cases like this – whether I represent the higher earner or the lower earner – I am frequently asked what’s going to happen with spousal support.

I have two general answers: 1) until the divorce is final, the court’s going to plug all of the relevant numbers into the computer and whatever support number pops out is very likely going to be the amount the court orders for support; and 2) when the divorce is final, I have absolutely no idea what the court is going to order for spousal support (absent an agreement) because computer programs are verboten in Post-Judgment spousal support orders.

So this then begs the question – what will the court consider, and why is there even a difference between pre-Judgment (known as “temporary” or if you want to get all fancy and Latin “pendite lite” support) and Post-Judgment (often called – and usually erroneously – “permanent” support)?

To address the second question first, the court uses a different calculus for a very good reason – before a divorce is final, the court really does not have all of the pieces to the puzzle that it needs to come up with a good solution to the support question (or any other question in the case). It wants to ensure that both parties to the divorce have access to a relatively equal amount of available resources so that they can each get through the court case without going bankrupt. This means the court will attempt to equalize the amount of post-tax income between the parties.

The answer to the first question is more difficult. In the Post-Judgment scenario, the court is less concerned with an equal playing field, and is more concerned with the spouses each being self-supporting and to a degree the lifestyle the spouses enjoyed during the marriage. The ultimate goal for any supported spouse under California law is to become self-supporting within a reasonable time. And if that spouse has a solid income – even if it’s significantly less than the other spouse’s – the court will weigh that fact pretty heavily when trying to come up with an amount of spousal support that is appropriate under the circumstances. So just because one spouse earns $400,000 per year and the other only earns $200,000 per year does not necessarily mean that the court will order the higher earner to pay support. Clearly, it would be difficult for a person to argue that he or she cannot make ends meet on $200,000 per year.

This is not to say that the court will not order some amount of support for some period of time. If the parties enjoyed a very nice lifestyle during the dual income marriage, and the higher earner will be able to enjoy that same lifestyle while the other will not without support, that is also a factor the court can consider when it comes to making a Post-Judgment order. But the wisdom here is that there are no guarantees, and a temporary order is usually going to be higher (sometimes much higher) than the eventual Post-Judgment order. And the more the supported spouse is able to provide for his or her own support in that Post-Judgment world, the less likely it is that a Post-Judgment support award will be necessary, or that an order will last for a significant period of time.

Post-Judgment spousal support is a tricky area, and depends almost exclusively on the facts and circumstances in each individual case. Spending some time with a family law attorney to discuss the ins and outs of Post-Judgment support can be a worthwhile endeavor when mapping out the landscape in your Post-Divorce life.

 

 

ABOUT THE AUTHOR: Neil M. E. Forester (@nmeforester) is Managing Shareholder of FORESTER PURCELL STOWELL PC, a Northern California law firm focused exclusively on specialized counsel for complex divorce and family law issues. He is recognized by the State Bar of California’s Board of Legal Specialization as a Certified Family Law Specialist. Neil regularly represents business owners, professionals, and other high net worth individuals (or their spouses) in divorce, premarital agreements, and related actions. Beyond his legal practice, Neil serves as Board Chair for WEAVE and NorCal Boxer Rescue. He can be reached at info@foresterpurcell.com or 916 293 4000. This information is general in nature and should not be construed as legal advice.
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