In California divorce cases, courts typically calculate the amount of any spousal and child support awards based on not only the spouses’ current earnings, but also their respective capacities to earn. As the Sixth District Court of Appeals explains in In re Marriage of Lim, the latter figure can be difficult to determine for a spouse working in a field that requires “excessive” hours on the job.Carrasco (husband) and Lim (wife) were married in 2003 and separated eight years later. They had two children under the age of five at the time. Carrasco was a college professor with average monthly earnings of more than $9,000, while Lim worked as a partner in a law firm, earning more than $27,000 a month.
The parties resolved all of the issues related to their divorce, including the decision that Carrasco be given primary physical custody of the children, with one exception: the amount of temporary spousal support and child support Lim would pay to Carrasco per month.
Lim explained to the court that she had been on a leave of absence from her job for medical reasons and intended to return, working 80 percent of her previous hours in order to aid her children’s transition following the divorce. As a result, she expected to earn about 80 percent of her previous salary, or just over $22,000. Based on the 80 percent earnings figure, the trial court ordered Lim to pay temporary spousal support of $2,705 and monthly child support of $1,568. Carrasco appealed the decision, arguing that the support payments should have been calculated based on Lim’s full-time earnings capacity.
On appeal, the Sixth District ruled that the trial court did not abuse its discretion in using the 80 percent earnings figure to calculate the support orders. Noting that “it has long been the rule in this state” that courts may consider a spouse’s earning capacity in determining support, the court further explained that “the court’s determination of earning capacity must be consistent with the best interest of the children.”
The earnings capacity issue becomes more complicated when a spouse like Lim – who was expected to bill somewhere between 2,000 and 2,500 hours per year – works excessive hours or an otherwise onerous schedule. In 1992, the California Supreme Court explained in In re Marriage of Simpson that “earning capacity generally should not be based upon an extraordinary work regimen, but instead upon an objectively reasonable work regimen as it would exist at the time the determination of support is made.”
Here, the trial court reasonably found that Lim’s 80 percent schedule was in her children’s’ best interest; that she would be required to work more than 40 hours a week, even on the this schedule; and that her earnings would remain “high.” As a result, the Court affirmed the decision.
A person considering a divorce should seek the counsel of an experienced family law attorney in order to consider all of the options available, including alternatives to litigation such as collaborative divorce and mediation. The collaborative divorce route in particular should be considered as it allows you and your spouse to decide how best to co-parent and support your children. With offices throughout the Bay Area, California divorce lawyer Lorna Jaynes provides innovative legal tools to resolve family law disputes without the bitterness and acrimony engendered by the adversarial process.
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