There may be significant benefits for a non-income-earning spouse who seeks and obtains employment during the divorce litigation.
By Kelly Frawley and Emily Pollock, Family Lawyers
Re-Establishing a Career Sooner Rather Than Later
There comes a point in many divorce cases when a non-income-earning spouse realizes that she (or he) is going to have to get a job. Many of our non-income-earning clients believe that the best strategy for their divorce litigation is to wait to get a job until after their case has ended; but where it is possible for the non-income-earning spouse to establish or re-establish a career, we encourage them to do so sooner rather than later.
Prior to the enactment of the New York spousal maintenance statute, which became effective in January 2016, we often based that advice largely on the ancillary benefits of obtaining employment, as described in more detail below: bolstering confidence, earning the respect of the judge hearing the case, and undermining arguments from the primary-income-earning spouse about the hypothetical amount of income that should be imputed to the non-income-earning spouse. With the advent of the new maintenance guidelines, however, we are compelled to advise our clients that there is also a real financial need to establish some source of self-support as quickly as possible. The new statute provides durational guidelines for the payment period for post-divorce maintenance that are significantly shorter than what courts had been awarding when no such guidelines were in place, and a client who has not established an alternative income source may be caught short.
There used to be a general rule of thumb among matrimonial attorneys that the appropriate duration of post-divorce maintenance was about half the duration of the marriage. For example, in a 14-year marriage, a reasonable guideline for the duration of the maintenance would have been 7 years. Under the new maintenance statute, the durational guideline for a marriage of between 0 and 15 years is 15% – 30% of the length of the marriage, which would be between 2.1 and 4.2 years for the hypothetical 14-year marriage. Thus, a client may find herself having gotten married at 28, stopped working at 30, getting divorced at 42, and facing the termination of any maintenance at 45, at which point she would have been out of the workforce for 15 years. While these statutory guidelines are not binding and the statute is too new for us to know how courts will apply it, there is cause for non-income-earning spouses to be concerned about their financial security if they do not earn some income to contribute to their self-support as soon as they are able.
Moreover, we find that non-income-earning clients who commence working during their divorce litigation enjoy additional benefits in excess of the income earned. The process of obtaining employment often boosts the confidence of a client whose self-esteem has suffered during the divorce litigation and the events leading thereto. Receiving positive feedback and feeling a sense of accomplishment can be invaluable. In addition, just having the structure a job provides can help a client focus on something other than the unpleasantness of the divorce process.
The courts also respond positively to non-income-earning spouses who take the initiative in seeking employment during the case. While income earned by the non-income-earning spouse will be considered in determining the amount of maintenance or child support the income-earning spouse should be ordered to pay, which could result in a lesser payment amount, the decision to seek employment may help the client in other aspects of the case. For example, seeking employment shows the judge that the client acknowledges the financial realities of the situation, which lends credence to other positions the client may take with respect to the essential nature of some expenses, and that the client is not seeking to take advantage of the income-earning spouse, which bolsters claims about the non-income-earning spouse’s contribution to the accumulation of assets during the marriage.
Finally, in a divorce litigation where the non-income-earning spouse seeks maintenance, the income-earning spouse will argue that the non-income-earning spouse should and could get a job and will ask the court to impute some amount of income from such hypothetical employment. The income-earning spouse might argue that the non-income earning spouse earned an M.B.A. in 2000, so the same income that his peers are now earning should be imputed to him, or that she was earning $150,000 when she left her job in 2003, so an equal or greater amount of income should be imputed to her now. If the non-income-earning client seeks and obtains reasonable employment during the litigation, these hypothetical arguments about imputed income potential can be rebutted by the actual earnings the client is receiving.
Thus, there may be significant benefits for a non-income-earning spouse who seeks and obtains employment during the divorce litigation, and such a spouse should discuss that option with his or her divorce counsel in order to make the best and most informed decision.
Kelly Frawley and Emily Pollock are partners with the Matrimonial and Family Law practice of Kasowitz, Benson, Torres & Friedman LLP. www.kasowitz.com
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