THE BLOG

The Importance of the Standard of Living

07/15/2014 04:50 pm ET | Updated Sep 14, 2014

We often hear people jokingly refer to the fact that someone in a divorce is supposed to "enjoy the standard of living to which they have become accustomed" after a divorce. Case law in California does support the proposition that what we lawyers refer to as the "Marital Standard of Living" is a factor that courts are to consider when making an order for spousal support.

The law essentially provides that if there are enough earnings generated by one spouse to allow the spouses to enjoy that standard of living after divorce, a court is to consider that. As you can imagine, in many cases there are not enough funds to support two households at the same economic level that they had before the marriage. In those cases, the parties and their children will not be able to live at the same standard they had before.

In either situation, the standard of living remains an important factor to be determined either by the court or as part of a settlement agreement. Often times it is overlooked. In fact, in just this past month two clients who had other counsel in their divorces approached me about modifying their spousal support obligations. In both situations, their judgment did not address the standard of living. When asked why, they both responded that their lawyers told them "it didn't make any difference, I'm on the hook for life anyway". In those situations, what their lawyers missed, and what lawyers often do unfortunately miss, is the importance of attributing an amount to the standard of living for the purposes of putting a cap on what the supported spouse might receive, and for the additional purpose of laying the groundwork for a support reduction at some point in the future.

It is not uncommon that after a divorce, the income level of the spouse who is paying support may rise or fall. If it rises, it is important that the standard of living cost be identified, and that it be broken down into components attributable to each of the parties. The reason for this is that the standard of living is usually considered by the court to be the limit on the amount of support that should be provided. So, in the case of someone paying support who starts to earn more income after divorce, the standard of living can be used to prevent an increase in support being paid to the other spouse, who contends that he or she does not have sufficient funds on which to live.

And, in the situation where the paying spouse wishes to reduce the amount being paid, the standard of living also becomes relevant. Without a clear definition in the judgment, it leaves open the argument by the spouse receiving support that his or her needs were never met, and that therefore, there is no basis for reduction.

It is often hard to determine the standard of living years after divorce when the modification issue arises. It is also costly to then have to reconstruct the records, and perform the analysis. The issues can be raised in a proceeding to modify support--but the better practice is to insure that the issue is appropriately addressed before the case is settled or goes to trial - especially for the spouse who is ordered to make the payments and wants to keep the door open to reduce or terminate them.