I have written blogs in the past about how the Court addresses the issues of child support and spousal support. For the issue of child support in California, we have an algebraic formula set forth in Family Code section 4055. The Court is largely mandated to order guideline child support consistent with the formula which now is calculated via a program called “Dissomaster”. With spousal support, there are two separate approaches in determining the appropriate amount of spousal support depending on if it is for temporary support or for permanent support. For temporary support the Court will typically order “guideline” spousal support to address interim spousal support early in the divorce. For “permanent” support the Court is not allowed to use the guideline calculation to set permanent support. This week we explore why we might want to reconsider and establish “guideline” permanent spousal support, the rationale for not having guideline spousal support,and a little look at a couple of approaches to settle the issue of permanent spousal support given the current state of the law.
Why might we consider guideline spousal support? To answer the question of why we might want to consider establishing guideline spousal support, I direct you to some of the reasoning for why we have guideline child support, and the impact that it has had on litigation. Ever since I started practicing family law over 30 years ago we have had the same formula for resolving the issue of child support. If both sides can agree upon what the timeshare percentage is, what the income of each parent is, and what mandatory deductions there are from the pay of each, we are able to resolve the issue of child support because absent other agreement the Court is mandated to order the guideline number resulting from the inputs. We still manage to fight about what the inputs should be into Dissomaster, but once we get past that hurdle he child support number will be pursuant to guideline.
Family Code Section 4053 sheds some light on why the legislature established guidelines for child support. Per paragraph (J) “The guideline seeks to encourage fair and efficient settlements of conflicts between parents and seeks to minimize the need for litigation.” By setting forth a precise formula to determine child support which is presumptively correct absent special circumstances, doing so takes the fight out of the issue. As mentioned, we find reasons to argue over what the correct inputs should be but we can safely determine what the Judge will do given the inputs.
So, what about spousal support? For permanent spousal support we do not have the same clarity on what the final outcome will be because there is no mandated guideline formula, and the Court is not allowed to consider the Dissomaster generated number when it comes to permanent support. Instead, there is a list of subjective factors for the Court to consider set forth in Family Code 4320. There is no clarity on how much weight is to be given to which factor or what the right number should be given each consideration.
When the legislature set forth the method for determining permanent spousal support, I venture to say that they did not have the same focus on “minimizing the need for litigation” that they did with child support. By not having a guideline with spousal support the result is to make it a more contentious issue given that the outcome is not preordained with the Judge having broad discretion to consider the various factors and then set the amount.
Why not guideline spousal support? The complaint about guideline child support is that it is a cookie cutter which factors in the income situation of the parents but does not factor in their expense situation, or any other circumstances that do not show up in a Dissomaster calculation. Family Code 4320, on the other hand, has the Court consider any and all financial considerations. The calculator is used for a quick fix at the beginning of the case but as the Judge looks at the long term financial picture of the parties, it requires a more in-depth look at the big picture to make sure that the amount is fair to both given all considerations. So what is that right number? I appreciate that each case has its own particular set of circumstances and there are factors beyond the guideline calculator, it is just not clear how the 4320 analysis points out the right number for the Judge to order in the end.
So, what do we do with all of this? When couples are working outside of the Court to settle the permanent support issue, they can use any mechanism they choose to do so. It is quite common when attorneys are negotiating settlement of the permanent spousal support issue, that they turn back to the Dissomaster calculation to do so. You may hear about a possible 15% discount on the calculated spousal support number derived from the Dissomaster as a ballpark for permanent support. There is no legal basis to this approach as when it is litigated the Judge is precluded from considering the Dissomaster number. If both sides can agree to a way to come up with the number such as that referenced above with the 15% discount, we are moving toward an approach that accomplishes the public policy reasons that are the basis to guideline child support, which is to promote settlement and avoid the need for litigation.
I have had mediating couples who upon understanding how the Court would approach permanent spousal support, elect to defer to the Dissomaster calculation, with or without some sort of discount. So long as they continue to be in agreement with doing so, if there is a change to the income situation, they will simply rerun the numbers and agree to modify the support given the revised “guideline” number.
To guideline or not to guideline? I have appreciated over the years the simplicity of addressing guideline child support and have often wondered why we don’t do something similar with spousal support. I also understand the value of taking the entire financial picture under consideration when addressing the issue of permanent spousal support and have seen guideline child support orders that were mandated but were maybe unrealistic or even unreasonable given the bigger financial picture. I like any approach that reduces litigation but also manages to result in fairness. Having guidelines can have a tendency to be hit or miss on the fairness part of the equation. The nice thing is that if considering guideline calculations to resolve the permanent spousal support issue is acceptable for the couple, we can simplify the process by using the guideline figures despite California not having mandated guidelines for permanent spousal support.