From both sides — the paying party and the receiving party — one of the most controversial and confusing topics in all of California family law is the issue of spousal support. This article is only one observer’s views about the deep-seated questions about the subject.
So why the confusion? Why the widely varying outcomes? What is going on?
The answer, unfortunately, is that spousal support outcomes vary widely because, unlike child support, the issue of spousal support is extremely discretionary, and has no hard-set rules.
Child Support in California
So we have something to compare against, I will first show you how courts calculate child support in California.
Child support in California is determined by a formula that compares after-tax income against the relative custody of the parties. The formula is right in Family Code section 4055. The formula looks like this:
CS = K[HN – (H%)(TN)]
With the above variables defined as follows:
CS is Child Support.
K is the amount of both parents’ income to be allocated for child support.
HN = high earner’s net monthly disposable income.
H% = approximate percentage of time that the high earner has or will have primary physical responsibility for the children
TN = total net monthly disposable income of both parties.
That TN variable is further defined as follows:
|Total Net Disposable
Income Per Month
|$0–800||0.20 + TN/16,000|
|$6,667–10,000||0.10 + 1,000/TN|
|Over $10,000||0.12 + 800/TN|
For two people who have a set child custody schedule, and both work at regular jobs, this is pretty easy to calculate.
Temporary Spousal Support
The first thing I must do is back-pedal a little. Here in northern California, most courts actually have a formula for calculating “temporary” or “pendente lite” spousal support. The courts have mostly done this to allow a sum of money to flow from the higher wage earner to the lower wage earner on a temporary basis without having to conduct a time and money consuming trial. In Sacramento County, the formula works like this:
- Determine child support. Deduct that amount from the paying party’s income, and set it aside.
- Before adding child support to the receiving party, take 40% of the higher wage earning party’s income and subtract 50% of the lower wage earner’s income.
This is pretty simple, and Sacramento County Courts set temporary spousal support orders using this formula every day.
Long Term or “Permanent” Spousal Support
It is when divorcing parties are looking to set long-term spousal support that parties tend to run into the most variation in outcome. This is because (a) the court has a lot of discretion, (b) the statute providing for long-term support has a 13 point balancing test that the court uses to determine support (see Family Code § 4320).
That’s right. A financial issue in family court is determined by a discretionary, subjective, and unequally applied multi-point balancing test. The worst part is that the court usually does not typically tell the parties in advance which of the 13 points of the test will weigh most heavily. Trials on the issue of long-term spousal support are often long, arduous, filled with experts, and expensive. People usually find some amount that is equally displeasing and settling the case. Desperation often determines the limits of support, rather than a math problem.
What are some of those points in the balancing test, you ask? Here are a few:
- Marital standard of living. This takes evidence of lifestyle and evidence of earnings and spending during the marriage.
- Each party’s earning capacity. This accounts not for what you are earning, but what you are capable of earning.
- Each party’s assets following the divorce. If the lower income earner has inherited millions of dollars and the higher wage earner gets only half of the home equity, the higher wage earner likely will not have to pay support.
- Whether one party took time of to raise kids.
- Whether one party helped the other achieve a specific career.
- The health and age of the parties.
There are others, of course. It seems obvious that any trial asking a court to juggle all of these issues would be gruelling.
Non-Trial Means of Resolving Spousal Support Disputes.
There are ways to avoid the financial and emotional drain that a spousal support trial will cost you, though it always takes to willing parties to negotiate a settlement. Find a lawyer to help you make the best decisions about seeking/resisting and determining spousal support in your case.