In over ten years as a divorce mediator, few things are more surprising (and annoying) to me than the persistence of the incorrect view that post-divorce spousal support (called “permanent spousal support” in the law) can be calculated.
This view is incorrect because the law is crystal clear that post-divorce spousal support, when determined by a judge, must be based on a ground-up examination of each of the 14 Family Code 4320 factors as they apply in each particular case. It must not be based on a calculation.
You can read about spousal support on the websites of California Family Law attorneys and they are unanimous on this point. Temporary (pre-divorce) spousal support can be calculated; post-divorce spousal support cannot.
So where does this incorrect view come from? I think there are three main sources:
1. Higher Temporary Spousal Support
The reality is that “temporary support tends to be higher than permanent support,” acknowledged in Judges Benchguide 201 concerning spousal support. This has contributed to the widespread view among divorce professionals that if you subtract say 15-20% from a temporary spousal support calculation, that’s a reasonable expectation for what post-divorce spousal support would be. However, clearly a broad average isn’t necessarily applicable or appropriate to each situation.
2. Dissomaster “B” Key – Spousal Support Calculation
The dissomaster is a widely-used standard program for guideline child support and temporary spousal support calculations. On the temporary spousal support screen, if you press “Ctrl B” the program gives a reduced amount of spousal support. The program does this to take out assumed tax-deductibility of spousal support. This might possibly be useful in situations of a spousal support buy-out. The percentage reduction varies from couple to couple depending on their incomes and tax situation.
Prior to Trump’s Tax Cuts and Jobs Act, the B key reduction often would have been somewhere around 20%. However, the 2017 Act got rid of the deductibility of spousal support for federal income tax purposes. If you press the B key now, you still get a reduced spousal support calculation, but typically just 5-7 percent less than the calculated temporary spousal support figure. This is because spousal support is still deductible for California state income tax purposes (but no longer for federal income tax purposes).
The B key was never intended to give a calculation for post-divorce spousal support. Nonetheless, apparently since the B key still gives a spousal support calculation that is less than the temporary spousal support figure, the idea persists among some divorce professionals (without any basis in reality) that this is a reasonable or appropriate expectation for the amount of post-divorce spousal support.
There’s a natural human desire for a short-cut to an answer. Determining post-divorce spousal support is very often the most challenging part of a divorce settlement or judgment.
Attorneys and other divorce professionals generally don’t want to tell prospective or current clients that they don’t know what amount of post-divorce spousal support a court would order.
Judges, with heavy caseloads and a shortage of time to deal with them, have an understandable motivation to speed things up. Presumably fairly often they take the easier and faster road of basing their post-divorce spousal support amount on a temporary spousal support calculation. The calculated temporary amount is shown on a printout that is very often part of the court record. And judges are of course entitled to review anything in the court record.
How do you stop a judge from taking such a short-cut? Make sure they go through each of the 14 factors. Have them put their findings on each factor in writing. Ask for a detailed statement of decision, not just a ruling giving the amount of support. Remind the judge about In re Marriage of Olson (1993) 14 Cal.App.4th 1, in which a permanent spousal support order based on the Dissomaster was overturned because of the failure to consider all 14 factors.
The good news is that you can bypass all of the above. Just work out your own agreement concerning post-divorce spousal support, either on your own or perhaps with the help of a divorce mediator.