Tag Archives: divorce

CA Appellate Court Caps Bonus Spousal Support Payment Based on Change of Circumstances and Reasonable Expectations of Parties

January 30th, 2019

Usually, a person who has been ordered to pay spousal support does not run to court seeking a reduction in support after she or he has just received a large raise — the risk being the court could order an increase in support because of the increase in the payor’s income. But in the recent case of T.C. V. D.C. a wife who was paying support to her former husband sought a court ordered reduction in spousal support after she landed a new job with much greater earnings.

Wife’s Salary Skyrockets and She Wants the Court to Reduce the Amount of Support She Must Pay?

Why would the high earning wife take this risk? Wife took this risk because she was paying her ex-husband a base support payment every month tied to her base salary, plus she was paying her ex-husband a percentage of all income that exceeded her base income — and, unfortunately for Wife, the parties’ Marital Settlement Agreement had no cap on the amount of bonus support that she paid to Husband. Think about it: Originally, Wife was paying base support to Husband of less than $1,000 plus she was paying him 10% of her excess/bonus income. At the time of the Marital Settlement Agreement, Wife’s projected “excess” annual earnings (i.e. her annual bonuses) totaled $9,900, meaning Husband would receive an additional $990 annually as an additional “bonus support” payment. Wife agreed to pay this bonus amount even though Husband acknowledged in the Marital Settlement Agreement that the BASE amount of support met his needs and his expenses at the time of the divorce were reflective of the parties’ marital standard of living. Therefore, the bonus payment was gravy as it exceeded his needs as well as the marital standard of living.

Fast forwarded a couple of years later, Wife found a great new job and her “excess earnings” were dramatically higher — $250,000 higher than before! Translation: Per the terms of the Marital Settlement Agreement, Wife’s annual bonus support payment went from $990 to $25,000!

When the Wife filed her request to reduce her support payment, Husband argued that per the terms of their Marital Settlement Agreement wife could not escape the 10% bonus payment no matter how high Wife’s excess earnings were. In layperson’s terms, Husband argued “a deal is a deal.” In legal terms, Husband argued, that there was “no change in circumstance” because at the time the parties reached their original support agreement there was an expectation that Wife’s earnings would increase.

At trial, the court found in favor of Wife. The trial court found that there was a change in circumstance and the trial court then capped the bonus payment to $990/year as that was the bonus amount Wife paid at the time of the Marital Settlement Agreement.

Husband appealed, and the appellate court agreed with the trial court that there was a change in circumstance which warranted a modification of Wife’s support obligation. The court reasoned that although at the time the parties entered into their original agreement they had contemplated an increase in Wife’s earnings, they had not contemplated such a dramatic increase in Wife’s earnings. Huge win for Wife, right? Not so fast. The appellate court went on to state that the $990 annual cap was inappropriate because the Marital Settlement Agreement stated that the base amount of support paid met husband’s needs and the parties’ standard of living. Therefore, the parties had agreed to a support payment that exceeded the parties’ marital standard of living by inclusion of the bonus provision.

Why Bonus Provisions in Marital Settlement Agreements Should Always Include Caps from the Payor’s Perspective

Generally, the payor of support wants their Marital Settlement Agreements to include a statement that the support paid meets the supported parties’ needs and the parties’ marital standard of living. Establishing the marital standard of living and husband’s needs is good practice as those agreed upon facts generally limit a supported spouse’s ability to seek a significant increase of support in the future. Fortunately for Wife, the Marital Settlement Agreement in T.C. v. D.C. included such a provision. But in this case, the problem was not the marital standard of living, it was the gravy – Wife’s agreement to pay bonus support meant she was willing to pay husband support that exceeded the parties’ marital standard of living. Therefore, when drafting Marital Settlement Agreements, if there is a bonus support provision, the support payor should insist to a cap on the amount of bonus support paid.

Ultimately, the net result of T.C. V. D.C. is Husband was not capped at the original $990 annual bonus, but the court can establish some reasonable cap, based on the parties’ expectations at the time they entered their marital settlement agreement.

Getting your holiday schedule in order

November 18th, 2013

November is well underway, and with Thanksgiving approaching, it is time to take a proactive look forward to the upcoming holiday season. Many families have custody and visitation Orders that include designations regarding where children will spend each of the coming holidays. It is a good idea to take out your final Judgment of Dissolution or current custody and visitation Order, if it is not part of a Judgment or has been revised since your Judgment was entered, and review it to re-familiarize yourself with the holiday schedule for the next four months. This will allow you to properly plan for the holidays and to deal with any anticipated issues before they arise. Taking care of this well ahead of time will reduce stress and conflict and if necessary, allow enough time to bring a specific issue before the Court if necessary.

When re-familiarizing yourself with your holiday schedule, you should look at the following:

1. Note all of the upcoming holidays that your family celebrates and make sure that each holiday is addressed in your Judgment or Order.

2. What, if any, travel plans does your family have? If so, what type of travel information do you need to provide the other parent regarding your travels and by when?

3. Do any of the plans that your family has for the holiday season conflict with the Judgment or Order?

4. Are there any holidays for which there are no Orders or pursuant to which your Judgment or Order designates that you and the other parent will work out an Order?

5. What information do you need to communicate to the other parent in order to finalize the holiday schedule and/or work out any issues that you see now?

After reviewing your Judgment or current custody and visitation Orders, you should make a list of all issues that need to be addressed. If you are represented by counsel or wish to contact an attorney regarding any issues, you should have your list ready when you speak to them along with any proposed communication to the other parent suggesting solutions for dealing with scheduling issues.

All communication with the other parent on any issue, including custody and visitation, should be succinct, professional, and non-provocative. It should address only the issues at hand and should avoid touching on any other unrelated subject, issue, or idea. Finally, it should always be devoid of accusation, name-calling, recollection of past wrongs, arguments, difficulties and the like.

Families with children already have a lot going on during the holidays. Taking the time to deal with your holiday schedule now will save you stress, helping you to avoid the possibility of trying to get into court at the last minute in the middle of an already stressful holiday season.

Former spouses co-owning family business after divorce

December 13th, 2012

Ordinarily, marital dissolution involves too much hostility and distrust for couples to co-manage a family business following divorce.  Occasionally, however, divorcing parties believe that it is in their best financial interest to jointly manage and control a family business post divorce.  Read more about this in a recent NYT article:   Read more about this here.