It is important to start with the basic differences between temporary and permanent spousal support. Temporary spousal support is ordered during a pending divorce and is often calculated by a guideline calculator, much like child support. On the other hand, permanent spousal support is awarded after a court has ordered the dissolution of a marriage. Also, temporary and permanent spousal support orders serve separate functions. Temporary spousal support is designed to maintain the “status quo” until the issue is tried or settled, while permanent spousal support is to provide financial assistance in light of the Family Code 4320 factors and involve the court’s exercise of discretion in the weighing process, as discussed below. [Marriage of Schulze, supra, 60 CA4th at 525, 70 CR2d at 492].
Temporary Spousal Support
Many courts have adopted standardized temporary spousal support “schedules” (“or guidelines”) that earmark appropriate awards based solely on the parties’ relative incomes. In effect, these schedules represent a proportion division of the family income “chart” or “graph” form. Absent “unusual facts or circumstances,” temporary spousal support may be properly set in reliance of such guidelines and through computer programs such as CFLR DissoMaster that mechanically calculate the temporary spousal support in accordance with the applicable local rules.
The application of such formula across the board for all cases of temporary spousal support is appropriate as a means of maintaining the financial status quo of the parties pending trial. One approach is the 40% – 50% / 25% – 40% formula. This approach of temporary spousal support at 40% of the payor’s income, less 50% of the payee’s net income; or, where temporary child support is also awarded, 35% of the payors net income (excluding income allocated to children).
Although concededly a valuable tool, standardized temporary spousal support is only a guideline and, therefore, are not binding on the court. This is particularly so in cases presenting “unusual facts and circumstances.” When there are unusual facts or circumstances, the guidelines should be applied as modified by such facts or circumstances.
Unless earlier modified or terminated, a temporary support order continues in effect until entry of judgment, at which point it is superseded by the “permanent support order contained in the judgment (at which point it is superseded by the permanent support orders contained in the judgment). It should also be noted that a temporary support order may be modified or terminated at any time except as to amounts accrued before the date of filing the motion or order showing cause re modification. Both temporary and permanent spousal support orders are modifiable only upon a showing of a material change of circumstances.
Permanent Spousal Support Orders
In any event, neither local spousal support schedules, not temporary spousal support computer programs may be used to fix “permanent” spousal support. They cannot even be used as a “benchmark” or “launching point” for permanent spousal support because the requisite weighing of the Family Code §4320 factors, as applied to the unique circumstances of each case, cannot be quantified in a standardized support schedule or computer program, it can only be done by the judge. [Marriage of Olson, supra, 14 CA4th at 5, 9, 17 CR2d at 483-484, 486 & fn. 3.] In other words, they must be determined de novo, making an independent ground-up determination, evaluating the §4320 circumstances on a blank slate without reference to the temporary support order.
Permanent spousal support must be the product of a truly independent exercise of judicial discretion, considering all of the applicable Family Code §4320 factors. You may be wondering which factors weigh more. Determining the weight to be given each of the statutory factors in a particular case in order to arrive at a “just and reasonable support award, is “extraordinarily difficult.” It is a matter committed to the trial court’s sound discretion. (Marriage of Smith, supra 335 CA3d at 494-495, 274 CR at 936].
In approaching the weighing process, courts must begin with the general premise that the decision to award spousal support and, if so, the amount and duration must be based on the standard of living established during the marriage. [Fam.C.§43330(a)]. In ordering spousal support, the court must consider all of the following:
- Ability to maintain the marital standard of living in light of earning capacities: The extent to which the parties’ respective earning capacities are sufficient to maintain the standard of living established during the marriage.
- Contributions to other spouse’s education, training, etc.: The extent to which the supported spouse contributed to the other spouse’s attainment of an education, training, career position, or license. [Ca Fam § 4320(b)] Section 4320(b) is a companion to Ca Fam § 2641, which creates a right of reimbursement for community contributions to one spouse’s education or training that “substantially enhances” the spouse’s earning capacity.
- Supporting spouse’s ability to pay: The supporting spouse’s ability to pay spousal support, taking into account his or her earning capacity, earned and unearned income, assets, and standard of living. Note: A spousal support order must be consistent with the supporting spouse’s ability to pay as determined by his or her circumstances at the time of the support hearing–i.e., the obligor’s present (not past or future) circumstances (current income/cash flow, assets, earning capacity, etc.) control.
- “Needs” in light of the marital standard of living: The needs of each party based on the standard of living established during the marriage. “Need” includes more than “bare necessities of life.” But § 4320(d) expressly codifies well-established case law consensus that “need” must also be judged in terms of the parties’ station in life during marriage and before separation.
- Parties’ assets and debts: The parties’ respective assets and obligations, including the separate property of each. Thus, a spouse’s separate estate (including assets allocated to each as a result of the community property division)–and the reasonable income potential therefrom–may require the “withholding” of support altogether or termination of previously-awarded support.
- Duration of marriage. The length of the parties’ marriage bears both on the “need” for support (whether it should be ordered) and on the amount and duration. The longer a spouse has been out of the job market on account of the marriage, the stronger the case for granting support; by the same token, a relatively short marriage can, depending on the other § 4320 factors and the “totality of the circumstances,” offset alleged “need” and justify a lower level of support and/or a shorter support term.
- Employability of custodial spouse vs. impact on children: The ability of the supported spouse to engage in gainful employment without interfering with the interests of dependent children in his or her custody. [Ca Fam § 4320(g)] Section 4320(g) recognizes the overriding public policy concern for the welfare of the parties’ minor children. Theoretically, e.g., weighing all relevant circumstances, the needs of young children may justify indefinite spousal support to a custodial parent even after a relatively short marriage.
- Age and health of the parties. On balance and after weighing all of the § 4320 factors, age and health may warrant either an extension or withholding of support. Age and health considerations are also particularly relevant to the question of duration of support.
- History of domestic violence: Documented evidence of any history of domestic violence (as defined in Ca Fam § 6211) between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.
- Tax consequences: The immediate and specific tax consequences of spousal support to each party (e.g., who pays the taxes, who gets the deduction, what effect on net income). [As a side note: Spousal support payments made pursuant to divorce or separation executed on or after January 1, 2019, regardless of whether or not they are included in family support orders, are neither taxable to the recipient nor deductible by the payor.]
- Relative hardships: “The balance of hardships to each party.” This factor seems to underscore the court’s obligation to consider and weigh all of the § 4320 circumstances in determining the appropriate amount and duration of spousal support.
- The goal of self-support: “The goal that the supported party shall be self-supporting within a reasonable period of time. Except in marriages of long duration (as described in Ca Fam § 4336, a “reasonable period of time” within which to achieve the goal of self-support “generally shall be one-half the length of the marriage.”
- Spousal abuse conviction (mandatory factor for support reduction/termination): The criminal conviction of an abusive spouse is a mandatory factor to be considered in making a reduction or termination of spousal support in accordance with Ca Fam § 4325.
- Other “just and equitable” factors: “Any other factors the court determines are just and equitable.” This final factor is a “catch-all,” clarifying the court’s authority to consider any other circumstances, although not expressly codified, bearing on the propriety of awarding support and, if so, its amount and duration.