Paying Support to a Spouse Who Doesn’t Work
Spousal support is generally one of the first issues that surfaces when parties begin the process of dissolving their marriage. One of the relevant code sections governing support is Family Code Section 4332 which provides:
In a judgment of dissolution of marriage or legal separation of the parties, the court may order a party to pay for the support of the other party an amount, for a period of time, that the court determines is just and reasonable, based on the standard of living established during the marriage, taking into consideration the circumstances as provided in Chapter 2.
When seeking spousal support, the lower earning spouse must first file a Request for Order asking that the Court award spousal support (the amount of support requested must be specified). If appropriate, the court will order temporary spousal support pursuant to Family Code Section 3600. Temporary spousal support is a way for the court to ensure that the supported spouse’s needs are met, and that the status quo is maintained, pending a determination on permanent spousal support. In order for permanent spousal support to be set, the court must consider all of the 4320 factors thus making a separate hearing necessary.
Now, in cases where the supported spouse is unemployed, it is not uncommon for the supporting spouse to ask that the supported spouse be placed under a work efforts order and request that a Gavron warning be issued pursuant to Family Code 4332(b), which states:
When making an order for spousal support, the court may advise the recipient of support that he or she should make reasonable efforts to assist in providing for his or her support needs, taking into account the particular circumstances considered by the court pursuant to Section 4320, unless, in the case of a marriage of long duration as provided for in Section 4336, the court decides this warning is inadvisable.
When reading this code section one might question why a Gavron warning might be inadvisable in the case of a marriage of long duration. First, a marriage of long duration is considered to be a marriage of 10 or more years. The court might consider not issuing a Gavron warning in a marriage of long duration for a reason such as the supported spouse’s age. For example, after 20+ years of marriage husband and wife decide to divorce. When husband is ordered to pay support, he asks for wife (who did not work during the marriage and is currently in her 60’s) to be issued a Gavron warning. In this instance, the court might find it improper to issue such a warning in light of wife’s age and her lack of marketable skills. However, there is no specific answer as to whether or not a court will issue a Gavron warning as the decision of whether to do so is discretionary and largely dependent on the facts of the case.
As mentioned above, another typical request made by the supporting spouse is for the supported spouse to be imputed income. For example, husband and wife divorce and wife is ordered to pay husband spousal support. Wife requests that husband be under an employment efforts order. After husband repeatedly fails to comply with the work efforts order, wife asks that he be imputed income. When deciding whether to impute income the Court will look at the ability to work, the opportunity to work, and the party’s willingness to work. Another factor, if there are minor children, is the potential impact on the children of having the parent return to work. One of the most important factors in this equation is why the supported spouse is unemployed. Is it because he/she voluntarily quit their job? Or is it because he/she was laid off involuntarily? The reason for the unemployment can be a large deciding factor for the Court. The amount of income to be imputed also depends on the facts of the case. Sometimes, a vocational expert might be brought in who can testify to jobs and salaries for which the support spouse would qualify.
Here at Mello & Pickering, LLP with 40 years of combined experience in family law, we can help navigate you through the divorce process and ensure that your rights and best interest are protected.