Divorce: A Survival Guide by Dianne R. Ophelia
IV. Jobs And Divorce
- Should I Get A Job?
- Should I Quit The Overtime Or My Second Job?
- Should I Quit Work?
- What If I Legitimately Lose My Job?
- Can I Retire?
1. Should I Get A Job?
The court strongly encourages, if not demands, that an unemployed spouse either enrolls in
school full time to obtain an education which will lead to a realistic job opportunity or
finds employment. This is a result of the California law that encourages everyone to be
self-supporting.
Even if you have not worked during the marriage and/or have small children at home, the trend
of the courts is to encourage enrollment in school and/or work.
A stay-at-home parent is not a reality in the divorce world, except in rare situations.
Remember, it is always more expensive to support two households than one. If you want to keep
your standard of living similar to when you were married, you are going to have to find a
source to supplement your income. Even if your support order is reduced because you have
added income from your employment, the reduction is less than the benefits realized from
the additional income.
2. Should I Quit The Overtime Or My Second Job?
If you have worked a lot of overtime or a second job trying to make ends meet or to have some
extra spending money during the marriage, the court generally will not make you work more than
40 hours a week if you want to cut down. (The exception is if your occupation typically requires
more than 40 hours, such as a medical doctor.)
Many people decide to cut down their work hours at divorce time. Some payor spouses reduce their
income because they do not want to pay any more support than they have to. Others do so because
they want to spend more time with their children now that they are separated. Also, the emotional
impact of the divorce may affect a person’s ability to work.
If you have been working in a high stress job and decide to change your employment to something
less stressful (with a lower income), the court may reduce your support accordingly if they find
that you acted in good faith. Of course you have to reduce your standard of living to reflect
your new pay scale or the court will have trouble believing you.
Ironically, if you want to quit your job or work part time to return to school to improve your
earning ability, the court is not so kind. This was the case when a pharmacist quit work to go
to medical school. The court assessed support based upon his “ability” to earn as a pharmacist,
even though he quit that job to ultimately increase his earning ability.
3. Should I Quit Work?
If you voluntarily quit your employment, you create a mess for yourself. The court will assess
“an ability to earn” for you based upon your former earnings and will set support based upon
this “phantom” income.
You can imagine what happens next. If you are the payor spouse, you have a court order for
payment of a monthly sum that you do not have. If you do not pay the court ordered support,
support arrears begin to accumulate with 10% interest charged from the date each monthly
installment is due. It can take years to dig yourself out.
If you are on the receiving end, you will receive much less than you can live on. You are
then forced to take whatever job you can get, or worse yet, move in with the folks!
No matter how much you think quitting your job will fulfill your emotional needs, you will
be hurting yourself a lot more than you will be hurting your spouse. Don’t do it.
4. What If I Legitimately Lose My Job?
The Judge will reduce your support if you are the payor spouse and lose your job through no
fault of your own. If you are receiving spousal support and lose your job, the court may
increase your support until you can obtain new employment. The amount you are actually
receiving from unemployment, disability, or any other sources will be considered when
the new support award is determined.
The court will generally include in the support order a provision that you must notify your
spouse within a certain number of days of obtaining employment so he/she can come back to
court and readjust the support. Some Judges will make you come back to court every 60 to 90
days for a review hearing to see if you have obtained employment and will require that you
make a certain number of applications for employment each week.
If your income is reduced through no fault of your own, be sure to have your attorney file the
necessary documents with the court requesting that your support be modified right away. Once
you file, any changes in the support order may be made retroactive to the date you filed your
papers, even if it takes a couple of months to get to court. Until you file documents with the
court, the old support order will continue in effect even if you have no income.
If you and your spouse agree to reduce support, be sure to “get it in writing.” Have a lawyer
prepare your agreement so that it can become a court order. I cannot tell you how often a spouse
says, “We agreed that I would no longer have to pay support or I would pay less because I lost
my job,” yet the other spouse comes to court years later and “enforces” the order, plus interest.
Oral agreements are useless.
5. Can I Retire?
Courts may vary on this one; however, generally they require everyone to work until age 65, even
if you had planned to retire earlier during the marriage. The exception is if you have already
retired before age 65 during your marriage and before you separated from your spouse. Usually the
court will not require you to go back to work.
If your income will drop, think twice before taking an early retirement unless you have a verified
medical condition requiring it. The court will generally not reduce a support order just because
you wish to slow down and/or retire before age 65.
Support may be modified or terminated when you retire at age 65. If you file a Motion requesting
a reduction or termination, the court will look at your retirement income and income from assets
and your spouse’s income at that time, as well as all other spousal support factors, to determine
an appropriate adjustment.
Some clients ask, “Do I get a break in support because I choose to work past retirement age?” The
answer is no. As long as your income remains the same, your support remains the same, assuming all
other factors do not change. The court is not sympathetic with the argument that you are working
past age 65 in order to save more for retirement and/or have a better standard of living. Your
former spouse still benefits as long as you are working, regardless of your age.