No matter what side of the aisle you are on politically or whether you were happy or dismayed by the results, the 2016 presidential election was historic. This blog is not about the election or the candidates that were running, nor does it have anything to do with their politics or positions. This blog is actually about is about what can happen in Family Court if you are fired from your job, either for cause (usually bad conduct) or you are laid off (think downsizing).
So how does losing your job relate to the election. Simple. Secretary Clinton lost the election and is unemployed. If you include her time as First Lady (which I think is fair), she has been employed in one capacity or another for the last 40+ years. As it stands today, Secretary Clinton does not have a job. So imagine a scenario where Secretary Clinton was paying President Clinton spousal support and wanted to seek a modification and wanted to seek a modification because she lost the election. This blog will try to answer that question.
First things first. Quitting your job is different from being fired for cause or being laid off. The former is voluntary and the latter two are not. When you quit, you are saying unequivocally, I no longer want this job. In contrast, whether you were laid off or you were fired, your preference was always to keep your job. These are referred to as voluntary terminations and involuntary terminations, and are treated differently by the Court when ruling on earning capacity or income imputation.
In all three scenarios, the Court will need to address whether to impute income to the party that lost their job. That means providing evidence of a party’s ability to work (age, occupation, skills, education, health, background, work experience and qualifications) and the opportunity for employment based on those abilities.
If you quit your job, it is easy to prove ability and opportunity. In fact you may not need to provide any evidence other than the party quit. The reason is simple. Yesterday they had a job, and today they do not have a job because they quit. Clearly they had the ability and the opportunity because they had the job. We have blogged about this in the past so if you want a more detailed discussion, you can read those blogs here: https://www.sandiegodivorceattorneysblog.com/2015/03/divorced-spouse-quit-job-child-support.html
If a party is fired or laid off, the court will do the standard ability and opportunity analysis and decide whether income imputation is appropriate. We have discussed this issue before which you can read about here: https://www.sandiegodivorceattorneysblog.com/?s=imputation#
But being fired and being laid off are also different despite both being involuntary. The difference lies with fault. If you are laid off because of downsizing, you had absolutely no part in losing your job. If you are fired for cause, it is usually because you engaged in some level of bad conduct. For example, if you knew that you had to be to work by 9:00am every day, but consistently showed up at 10:15, was being fired really involuntary? All things being equal, if you showed up on time you would still have a job.
In the case Marriage of Eggers, the Court said there might be a situation where the employee’s conduct warrants considering a claimed involuntary termination of employment as actually voluntary for purposes of determining the parent’s earning capacity. The Court in Eggers found the facts of that case did not require such a determination, but did leave it open for future cases.
So how would Secretary Clinton fare in a California Family Court . My guess is the Court would grant her request to modify support since losing an election is not a voluntary choice. It is possible to analogize Clinton losing the election to be being fired for cause, but only by the people who voted against her.
As a quick side note, since Secretary Clinton is 69 years old, the Court could not impute income to her at her previous level if she decided to retire no matter the reason. That comes from the case Marriage of Reynolds that says a party cannot be forced to work past regular retirement age (65) in orde to pay support at previous levels.
These are complex fact driven issues that must be analyzed closely by a qualified family law attorney. Getting these issues wrong could not only cost you a lot of money, but could impact your finances for a very long time.
Feel free to contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding support modifications. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.