WILL I HAVE TO PAY SPOUSAL SUPPORT BECAUSE MY EX QUIT HIS JOB?

DONALD F. CONVISER, a Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Family Law and Divorce Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, brings you another informative and educational blog, responding to questions posed to him by members of the public in areas of Family Law and Divorce.

I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:

QUESTION: Will I have to pay spousal support because my ex quit his job? Prior to my filing for divorce my husband quit his job. He did not discuss the matter with me nothing, just quit. And now that I have filed for divorce, he claims I owe him spousal support, and child support for our 2 young boys when he cares for them 50% of the time. Is this right? Now he wants his 50% part of my 401K as well. Am I going to keep paying and paying this guy?

ANSWER: If you are working and your husband is not, and your husband files an OSC [Order to Show Cause] for spousal support, the Court would award him spousal support unless it imputes income to him (in an amount sufficient to justify not awarding him spousal support).

The Court bases temporary spousal support [during the divorce process] on your income and your husband's income, and permanent spousal support [upon trial or settlement of the divorce case] on factors set forth in Family Code Section 4320. The Court bases child support at all times on your income, your husband's income, and the custodial timeshare between you and your husband.

Upon appropriate proof, the Court could impute income to your husband, even if he isn't actually earning income. However, merely proving that he quit his job is not enough.

The burden will be on you and your attorney to persuade the Court that income should be imputed to your husband, based on his ability to earn [his education, training and work history] and his opportunity to earn [i.e., job availability in his field(s) of experience, and wages offered by those prospective jobs].

You would be best served by an experienced Family Law attorney, to seek and provide evidence and testimony to the Court. In Marriage of LaBass and Munsie, the Court accepted classified ads as evidence of opportunity to earn, but in my experience, some but not all judicial officers accept or are persuaded by such evidence. It would be best to seek an order for examination of your husband by a vocational expert, to interview and test your husband, perform a labor market survey, prepare a report, and testify in Court if needed.

Under the new Elkins legislation coming into effect on January 1, 2011 [providing that absent a stipulation of the parties or a finding of good cause to refuse live testimony (stating its reasons for its finding on the record or in writing), the court is required to receive any live, competent testimony that is relevant and within the scope of the hearing], it would be appropriate for your vocational expert to be prepared to testify as to your husband's earning capacity.

In terms of division of community property, the Court divides net community assets between the parties, so to the extent your 401K plan was earned during the marriage, is included in the division. Your husband's quitting his job will have no influence on the division of community property.