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Spouses A and B are divorcing. Divorce started in December 2023. It's a contested divorce, with no settlement, so goes to the judge. There are no dependents to complicate the picture.

In the middle of divorce proceedings, B loses their employment in January 2024.

  • Would this job loss affect the spousal support/asset division? (I am not sure if this is the same question but the way I reframe this is "Does support take into account income at point of filing, or at point of judge's decision making?")
  • Do the circumstances of job loss matter? (e.g. being fired for cause vs. laid off vs. voluntary resigning from the job by B)?
  • What if B finds another job meanwhile, but it is much lower paid?
  • Would the answer be affected by whether A or B made more money initially? (meaning barring job loss A or B would pay spousal support).

Jurisdiction: USA, if states differ - New York City.

2 Answers 2

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In Colorado, in a permanent orders hearing in contested divorce a judge must:

(1) allocate each party's separate property, if any, to each spouse (roughly speaking this is property owned before the marriage and property acquired by gift or bequest during the marriage, but not appreciation in separate property during the marriage);

(2) divide marital property equitably but not necessarily exactly equally;

(3) allocate parenting time and parental responsibilities in the best interests of the children;

(4) award child support pursuant to the child support guidelines (which are based mostly upon relative incomes, number of overnights with each party, and number of children) subject to any case specific modifications (e.g., for extraordinary health conditions of a child or in kind payments in lieu of child support for things like private school tuition);

(5) to consider alimony guidelines based upon the length of the marriage and the relative incomes of the parties, and then to make an alimony award, if any, which need not follow the guidelines if they have been considered; and

(6) to allocate the parties attorneys' fees and costs relative to their respective abilities to pay.

These decisions are made based upon the financial circumstances of the parties at the time of the permanent orders hearing at the end of the case, not at the time the divorce case is commenced.

Income from working enters into the child support and alimony analysis and also into the attorneys' fees and costs allocation analysis. If you earn more, all other things being equal, you will receive less child support, less alimony, and less to compensate you for your attorneys' fees and costs.

Also, judges can engage in reasonable tradeoffs in their permanent orders award - trading reduced or eliminated alimony for a larger share of marital property, for example.

But voluntary unemployment that is not a result of being a caretaker for dependents in the family can be held against you, and you can be treated as if you earned the income that you could earn (i.e. income can be imputed to you), even though you don't actually earn it, if the evidence supports the conclusion that you could earn it while meeting your caretaker role (usually with minor children, but sometimes with other dependents) and you are just trying to manipulate the court's award.

Actual and imputed income determinations are especially important with respect to alimony, which is rarely modified, as opposed to child support, which is often modified as much as every couple of years based upon changing incomes of the former spouses.

On to the specific questions:

Would this job loss affect the spousal support/asset division?

Yes.

I am not sure if this is the same question but the way I reframe this is "Does support take into account income at point of filing, or at point of judge's decision making?"

Colorado makes the decision as of the time of the permanent orders hearing (which can be months before the judge actually issues an order and finally makes a decision). But states differ greatly on this point. Another plausible date which may be the rule in some states, is the deadline for making pre-permanent orders hearing financial disclosures.

Do the circumstances of job loss matter? (e.g. being fired for cause vs. laid off vs. voluntary resigning from the job by B)?

Possibly. It has two possible kinds of relevance: first, it goes to future earning capacity (e.g., if you are fired from being a lawyer because you are disbarred), and second, it goes to whether or not you are voluntarily unemployed.

What if B finds another job meanwhile, but it is much lower paid?

This would also be relevant to both actual income, and whether your are voluntarily underemployed.

Would the answer be affected by whether A or B made more money initially? (meaning barring job loss A or B would pay spousal support).

Not much. Permanent orders awards in divorces are primarily focused on the present and the foreseeable future. The past (more than a year or so before the permanent orders hearing) is only relevant as evidence of what might be possible in the future, or what might not be possible in the future. Past earnings mater more in the case of people with irregular incomes (e.g., contingent fee lawyers who work on big long duration cases, or realtors who focus on high end properties and only make a few sales every few years that are each huge).

The rules are not the same in New York, and even though I'm admitted to practice there, I haven't done any family law in New York for more than twenty-five years (at a time when New York didn't have no fault divorce at all), so I can't recite the finer details of those rules from memory.

Unlike Colorado, New York State has both fault based and no-fault divorce, and while no-fault divorce is more common, both possibilities need to be considered, as the rules are not precisely the same in each case.

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In all provinces and territories, except for non-married couples in Quebec, when spouses separate, spousal support is to be determined according to the Spousal Support Advisory Guidelines.

The Users Guide has a section discussing the situation where the recipient's income decreases after separation or after a spousal support order has already been made. See section 15(f).

The court will consider the reasons for the decrease in income. To the extent that it is truly voluntary, the court may impute income so as to not increase the support obligation.

Where the recipient’s post-separation job loss is involuntary, issues of the connection to the marriage can arise, requiring consideration of factors such as the basis of entitlement and the length of time that has passed since the separation.

Where the decrease in income can be traced to a circumstance of the marriage (e.g. the spouse was in a more precarious junior position as a result of trade-offs made during the spousehood), this will weight in favour of increasing support obligations.

And even where the layoff or decrease in income is not traceable to the marriage, the resulting needs may be increased due to circumstances of the marriage or its breakdown. This would also weight in favour of an increase of support obligations.

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  • You list 2 options (voluntary or caused by marriage circumstance) but what if it was NOT voluntary (layoffs) but unrelated to marriage?
    – user17760
    Feb 24 at 17:02

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