Real Family Law Cases: What would you decide?

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  Alfred Mamo
  Lawyer

Spousal Support ( What we used to call Alimony)

You might have heard about an exchange between the writers F. Scott Fitzgerald and Ernest Hemmingway, when Fitzgerald said “The rich are different from us” and Hemmingway replied, “Yes, they have more money”.

This quote came to mind recently when reading a decision about spousal support against someone who has an income of about $5.1 million a year.  The case involves the well-known Canadian businessman Robert Herjavec (you might have seen him on the TV shows The Shark Tank or Dancing with the Stars).  He separated from his wife, Diane Plese after 24 years of marriage.  There were still two dependent children, one about 17 living with mom and going to private school, the other, about 22 years old, living away from home while going to university.  Mr. Herjavec maintained that his income, which in 2014 had been about $5.1 million a year, had gone down to  $1.6 million in 2015.  The judge would not buy any of it and at the wife’s request made an order for her support assuming that his income was still $5.1 million.

What do you think a judge should consider when deciding how much money should be paid? Is it simply a question of playing Robin Hood and “taking from the rich and giving to the poor” ? Does the fact that she has not been working outside of the home matter?  Is it relevant that she raised the children while he was spending long hours away from home building up his business?  What if the wife had left a career in order to be home with the children? Is the age of the spouses a consideration?  Does it matter who decided to call off the marriage?  Would it make a difference whether one or the other of the spouses was having an affair? Do answers to these questions determine how much should be paid and for how long? Should there be different considerations as to what is relevant and what isn’t depending on the amount of money involved?

The answer to all these questions should provide us with principles that every judge can apply in every case so as to have consistency in approach throughout the country, irrespective of how much money the family might have. The amount perhaps might be bigger the more money there is, but the values that should drive the decision making should apply to all of us.   But what if there is disagreement as to what those principles ought to be?  Should support simply be a question of dividing income between the spouses ignoring everything else?  And, for what period of time should the support be paid ?  What if the support recipient remarries ? What if the marriage is to a poor or a rich person, should that make a difference ?

In order to avoid a judge having to answer all of the questions above,  there are now Spousal Support Advisory Guidelines that help judges make decisions with respect to the appropriate amount of spousal support.  The lower the amount of income, the more the judges are likely to adhere to those Guidelines, however, as the income numbers go up, then the judges have a wider discretion as to what amount of support should be granted.  Is this the way it should be, or should there be simply a fixed formula that applies to everyone, so that it will be easy to make support arrangements without involving lawyers and fighting about what is right and what isn’t at a high financial and emotional cost to the clients ?

All the variables driven by the questions above are what lead to legal arguments, and the need for some cases to take years to get to trial, and days if not weeks of court time to get resolved.

And what about Mr. Herjavec?  What was he ordered to pay?  What do you think…..?

If you guessed $124,000 per month in spousal support  then you were right!  Spousal support is treated as income so the wife Ms. Plese, will have to pay tax on this amount.

So to get back to Hemmingway’s response, are the rich different simply because they have more money? Or are they a special bred that require special considerations ? And when it comes to spousal support, when is enough, enough? And most importantly, what do we do when, as in most cases, the problem is not how to divide up wealth, but how could a family survive financially trying to support two households when they struggled to make ends meet when they were together?

By the way Ms. Plese also asked for child support for the two children who were still dependants.  What do you think the order was ? I will deal with that in the next blog when we will discuss child support in the case of a professional basketball player.