Is there a calculation that can be used to determine spousal support in a California divorce? I’m amazed how often divorcing individuals tell me they think there is. Where do they get this impression? Usually from a member of the legal profession. So can you calculate spousal support?
Several authorized programs can be used to calculate a figure for child support. The most well known of these is the “dissomaster.” These programs can also calculate spousal support – but temporary spousal support only. However:
a) Judges aren’t obligated to use the calculated figure for temporary spousal support.
b) The figure is very crude. It relies on little else than the spouses’ after-tax incomes and any already-calculated child support.
c) You don’t have to use the figure at all if you work out your own divorce settlement.
Calculate Spousal Support? – The Law
The law is clear that calculated temporary spousal support is not to be used by a judge in any way to determine “permanent” spousal support. Nonetheless, many attorneys will tell you that “permanent” spousal support averages about 20% less than calculated temporary spousal support. The unfortunate implication is that if you calculate temporary spousal support and subtract about 20%, that’s about what you might expect a judge to order for “permanent” spousal support.
This is misleading. It bypasses what should be a detailed consideration unique to each divorcing couple. In fact, the law says that a judge must take into account 14 different factors listed in Family Code Section 4320 when determining “permanent” spousal support.
To give you confidence that I am not making this up, here are some quotes from “California Judges Benchguide 201 – Child and Spousal Support – Revised 2015.” This a manual that gives judges the basics about how to go about deciding divorce cases:
Temporary spousal support formulas “promote consistency in temporary support orders and may reduce the need for hearings; however, they are not mandatory and should not be used in cases with unusual facts or circumstances.” Paragraph 201.66.
“Determine whether to award permanent spousal support after considering all of the applicable factors listed in Family Code Section 4320(a)… Do not use the amount of temporary support or a computer calculation in determining the amount of permanent support because the considerations involved in awarding the two types of support are different.” Paragraph 201.4 (2)
“Unlike temporary spousal support, the purpose of permanent spousal support is not to preserve the status quo, but to provide financial assistance, if appropriate, as determined by the parties’ financial circumstances after dissolution and the division of their community property… In determining permanent spousal support, the court must consider a complex variety of statutory factors (Family Code Section 4320…), including several factors that tend to favor reduced support, such as the ‘goal’ that the supported spouse should become self-supporting within a reasonable period of time.” Paragraph 201.70
“Because the considerations in awarding the two types of support are different and because of the reality that temporary support tends to be higher than permanent support, the court should not use the amount of temporary support in determining the amount of permanent support.” Paragraph 201.70
“Computer programs cannot be used to calculate permanent support. In determining whether to award permanent support, and the amount and duration of that support, the court must consider and weigh all of the 14 factors listed in Family Code Section 4320, to the extent they are relevant.” Paragraph 201.71
Appeals Court Decisions
Paragraph 201.70 of the Benchguide also notes three highly relevant California Appeal Court decisions:
- Marriage of Schulze (1997): Family Code Section 4320 “clearly contemplates a ‘ground-up’ examination of need for and appropriate level of permanent support, rather than beginning with figure (sic) based on temporary support order;”
- Marriage of Zywiciel (2000): “in determining permanent spousal support, the judge may not abdicate responsibility by turning to DissoMaster temporary support guideline, even if used only as a reference point;”
- Marriage of Burlini (1983): “court may not use local guidelines for temporary spousal support to compute permanent spousal support.”