Saturday, February 24 , 2018, 2:58 pm | Fair 59º


Brian Burke: About Your Divorce (Letter 56) — Rebecca Learns a New Tactic

Dear Pinky and Spike:

I’m happy to hear that you don’t loathe each other anymore. I told you this would happen at the outset, but I know you weren’t listening. Sometimes I feel like Cassandra. You’ve both had some interesting things to say and you’ve actually — and finally — asked for help. You’ll have to wait. My readers are clamoring for a more complete ending to the story of Rebecca and Ralph.

The Trial Is Recessed

The judge ruled against Rebecca’s claim for reimbursement of the money used by Ralph to pay support to his former wife and children, so Ralph won. But then the judge ordered Ralph to pay exactly half the amount of Rebecca’s claim ($75,000/2 = $37,500) to Rebecca’s dreadful lawyer, Ms. Eunice Heep, who was the real winner. Once the evidence had been taken on the reimbursement issue, and the judge made her rulings, she ran out of time before she could decide how much support Ralph would have to pay. She recessed the trial and scheduled it for resumption on her first free afternoon, which was six weeks later.

How Spousal Support Is Reckoned

This gave Ralph and Rebecca time to think about what had happened. From the outset, Ralph was resigned to the fact that he’d have to pay high support for half the duration of the marriage. Half of 50 months is 25 — two years and one month.

The Family Code lists the 14 specific factors a judge must take into account when setting long-term spousal support. These include things like: the “income producing capacity” of both parties, their health, their needs and ages, the duration of the marriage, the number and ages of any children, the amount of community and separate property, and the “immediate and specific tax consequences to each party.”

After the court has “considered these circumstances,” it comes to Family Code Section4320 (a) (2) (n), which reads: “Any other factors the court determines are just and equitable.” The statutes in the Family Code alone are utterly inadequate guides for predicting the amount of spousal support a judge would award in any given case. If the outcome of a trial is unpredictable, settlement is very difficult.

So, about 20 years ago a family law lawyer, Stephen Adams, teamed up with two computer guys to create a program to calculate child support according to an eighth-grade algebra formula. They soon realized that they needed to charge about $500 per license in order to make the effort worthwhile, and they decided to write the program to solve for both child and spousal support.

Adams was bold, so he just pulled a formula out of thin air: 40 percent of the supporter’s “net income” less 50 percent of the supported spouse’s “net income.” Spousal support is a tax deduction to the person who pays it. In a stroke of commercial genius, Adams defined “net income” to mean the amount of income available after the effect of the tax deduction was fully realized. This requires several iterations of the formula, which is a problem with too many steps to work out with pencil, paper, and a calculator; it’s the kind of thing computers can do in a split second.

There were objections to the way “net income” was defined. Adams patiently explained that because he was the one who created the formula, he could define “net income” any way he wanted to. It was a strong argument. The argument against him was that lawyers don’t make up laws and expect the court to follow them. That’s the province of the Legislature. This is such a fundamental principle that one would think it would prevail — but one would be wrong.

It’s a long story, but the Superior Court in Santa Barbara uses the Adams formula to set temporary support and so do other counties in California. The law clearly forbids the use of the Adams formula for long-term support, but the conventional wisdom is that judges run the calculation to set an upper limit, and then reduce that amount. How large is the reduction? Who knows? Guesses fall within a range of 40 to 80 percent.

What Ralph and Rebecca Did with This Information

Ralph is a numbers guy, so he knows all of this. Rebecca was oblivious to how the amount of her temporary support was determined, but Eunice Heep assured her that Ralph’s voluntary payments were as high as the court would set them. Ms. Heep told Rebecca that the amount of support would go down after the trial, but only the judge knew how much the reduction would be.

Shortly after the trial, Rebecca had the time and inclination to think about something other than her case. What came to mind were questions about what she would do with the rest of her life. This made her think seriously about the implications of the fact that she hadn’t been asked out by any of the company’s top executives for several months, and she didn’t know why.

The company’s Chief Financial Officer was the first person “to spend time with” Rebecca very shortly after she and Ralph separated. That “relationship” ended when he worried that his wife would find out what he was doing, so he was relieved when Rebecca discarded him as a good prospect. They remained friendly, so Rebecca didn’t hesitate to ask him why the men on the top floor, so eager at first, had lost interest in her.

The CFO knew exactly what was wrong, and he told her. Word of the Robinson divorce spread throughout the company and her tenaciousness in pursuit of Ralph was common knowledge. Why would any man get serious with a woman who could do to a new husband what she was doing to Ralph? Even worse was the claim for half of the support Ralph paid to his first wife and children while he was married. The CFO reminded Rebecca that all the men at the top who might be interested in more than a casual relationship had former wives and children, and they saw her claim as evidence of pure avarice.

Rebecca was astonished. It had never occurred to her that she was doing anything unusual. She just turned her case over to her lawyer and assumed Ralph had done the same.

After thinking about what he told her, Rebecca had a second conversation with the CFO and asked if there was any way she might be able to “clear herself” (her words) with the men at the top. The CFO thought it was doubtful, but the only chance she had was to be generous, to treat Ralph graciously, and to hope that word of the New Rebecca got out. He said that if she followed his advice, he’d make a major contribution in her favor to the company’s rumor mill.

Rebecca was OK with the suggestion that she should be gracious with Ralph, but every time she thought about the “generous” part, she gagged. Wasn’t the point to get as much from Ralph as she could? She wasn’t getting any younger, and she needed the support she had earned for as long as it took to find a new husband to pick up where Ralph left off.

As the days went by she was courted by men in the company who were her own age, but that’s not what she wanted. While it led to some lonely nights, she started to turn them all down because she had learned in high school that dating for the sake of having a date could make her less attractive to the boys she really wanted to be with.

Rebecca hated being alone and always had; it made her physically ill — and scared. It was increasing fear that drove her to a third meeting with the CFO. She asked what she could do that would be both gracious and generous with Ralph. His instructions were exact.

To Be Continued

There’s still more instruction to get out of this story, so Pinky and Spike will just have to wait — an experience they are not used to and need more of. In the next letter I’ll describe what the CFO suggested, what Rebecca did with his instructions, and how Ralph reacted.

Your friend,

— Brian H. Burke is a certified family law specialist practicing family law and mediation in Santa Barbara. A researcher and educator in the field of divorce and family conflicts, he is also the creator of the Legal Road Map™. Click here for more information, call 805.965.2888 or e-mail .(JavaScript must be enabled to view this email address). Click here to read previous columns. The opinions expressed are his own.

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