Recent Posts in Domestic Partners Category

Marital Privileges Not To Testify Against Spouse or Domestic Partner

Sometimes married persons who are in litigation with third parties (i.e., former spouses and co-parents) are asked to reveal communications in deposition, through written discovery, or at trial between them that are protected from disclosure. It may help you to know when to assert an objection to such inquiries, and how to avoid answering such questions altogether.

California recognizes both a "testimonial privilege" and a privilege protecting "confidential marital communications". These privileges are codified in Evidence Code section 970, Evidence Code section 971 and Evidence Code section 980. They are distinct privileges, and the one that most often applies to family law are sections 970 and 980, where one's current spouse is embroiled, for instance, in litigation with a former spouse (or in paternity cases, the other parent). These privileges apply equally to registered domestic partners pursuant to the general application of Family Code section 297.5. Limitations on the marital privilege are generally found at Evidence Code section 972. 

These privileges serve two important public policy goals: 1) to preserve and promote marital harmony and 2) to encourage and preserve confidences between husband and wife. Essentially, the assumption is that society has more to lose from the disruption of the marital relationship that might be caused by encouraging spouses to testify against one another, or to disclose secrets, than it has to gain by learning what was said. This makes sense - however, unrepresented parties often lack an understanding about their rights and privileges, which can be waived if not properly asserted. Hence today's Blog.

The testimonial and confidential marital communication privileges require the existence of a valid marriage or domestic partnership. Keep in mind that they do not apply between you and the spouse or domestic partner whom you are litigating against - these privileges cease to exist as between parties to a dissolution or related family law proceeding. In addition, where no valid marriage existed (i.e., a marriage that was void at its inception (bigamous, incestuous, lack of proper solemnization and the like)), the privileges never arise. In contrast, where a marriage is voidable (minority, fraud, physical incapacity) the privilege exists unless and until a final judgment of annulment has issued.

Testimonial Privilege

• The privilege applies only during existence of valid marriage or domestic partnership
• A married person has a privilege not to testify against his or her spouse in any proceeding. Evidence Code § 970.
• A married person, whose spouse is a party to a proceeding has a privilege not to be called as a witness by an adverse party without the witness spouse's prior express consent. Evidence Code § 971.
• Both testimonial privileges belong to the witness spouse.
• The 970 privilege permits a spouse to refuse to answer questions requiring testimony about the other spouse, whether or not they are a party to a proceeding.
• The 971 privilege only permits a spouse to refuse to answer (or be called) in proceedings where the other spouse is a party.
• The 970 privilege belongs only to the spouse who has been called as a witness - in such cases (i.e., where the other spouse is not a party) the other spouse has no standing to prevent their spouse from voluntarily testifying.
• The 971 privilege belongs to both spouses. Thus, even if spouse B is willing to answer questions about spouse A in pending proceedings involving spouse A, spouse A can assert the privilege to bar the testimony that otherwise might have been obtained.
• Once the marriage is terminated by Final Judgment (for instance, even a "status termination" on bifurcated proceedings where other issues remain reserved and therefore open - like property division or custody), the privilege evaporates (but see the confidential marital communications privilege below).
• The privileges do not apply to proceedings brought by one spouse against the other.
• They do not apply to certain types of hearing, including competency or commitment/conservatorship proceedings (since alleged mental or physical condition may be in issue).
• These privileges do not apply to juvenile court proceedings. [EC section 972(d)].
• Trial courts are not required to inform spouses of their rights not to testify - being uninformed and then giving testimony that could have been avoided does not operate to permit the testimony to be stricken.
• There are critical exceptions to the privilege that apply in family court proceedings [EC section 972(g)]. These include:
  • A married person cannot claim the testimonial privilege to refuse to answer questions about issues relating to income, expenses, assets, debt and employment of either spouse.
  • An action brought against the spouse by a former spouse to establish, modify or enforce a child, family or spousal support obligation arising from the marriage to the former spouse.
  • An action brought against a spouse by the other parent to establish, modify or enforce a child support obligation for a child of a nonmarital relationship between the parties.
  • In proceedings brought by a guardian of a child against a spouse relating to a child support obligation.
• Note that the testimonial privilege in the exceptions above (disclosure of income and assets, etc.) remains intact if other information is sought beyond the scope of these finance related exceptions, as to the requested disclosure of such other information.
• There are two exceptions in which a spouse may be deemed to have waived their marital privilege to refuse to testify or be called as a witness:
  • Unless erroneously compelled to do so, a married person who testifies in a proceeding to which his or her spouse is a party, or who testifies against the spouse in any such proceeding, waives their section 970 and 971 privileges in those proceedings for all purposes. 'Erroneously compelled' means under circumstances indicating "irresistible force", for instance where a judge orders the spouse to answer the question.
  • A married person cannot assert these privileges in a civil proceeding which they themselves have brought, or are defending, for the "immediate benefit" of his or her spouse, or both jointly. In such cases the privileges are effectively waived. [Evidence Code § 973(b)]. A common example would include an action for personal injury damages against a third party.

Confidential Marital Communications' Privilege

Absent a waiver or an exception, a married person, whether or not they are a party to proceedings, has a privilege to refuse to disclose confidential communications between the married person or their spouse made while they were married or domestic partners. Evidence Code section 980. 

Here are some general points to understand as to the limitations of this privilege:

• There must be a valid marriage or RDP at the time of the communication.
• This privilege survives the dissolution of the marriage itself.
• Each spouse or former spouse holds and can assert the privilege.
• Only "confidential communications" are exempted from disclosure. A "communication" means a written or oral statement or act intended to convey a message.
• As to the existence of assets and debts, it doesn't prevent disclosure of the fact of the existence of same - it only protects communications about those subjects.
• The communication must have been made in a setting that reasonably implies a confidence. There is a presumption that communications between spouses were made in confidence, but that presumption can be overcome upon a proper showing.
• If a third person was present, then there may not be a presumption that the communication was intended to be "confidential" or the presumption may be rebutted.
• The privilege will not exist where the party asserting it is abusing the "mantle of confidentiality", for instance where it is part of an assault by one spouse upon the other.
• It cannot be asserted where its application would serve to enable or aid a crime or fraud that is being attempted (although the privileges under EC sections 970 and 971 may apply).
• It does not apply to proceedings against the spouses themselves, and there are other limited exceptions (juvenile court proceedings, for instance).

Thurman Arnold, CFLS

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First, I'm assuming that Patricia B. is your birth name, or that you had previously obtained a name change whether by court decree or prior marriage. I say this because Family Code section 354 (dealing with marriage licenses) requires a photo ID that accurately lists your given or subsequently legal name so I expect that is what you presented to obtain the license.

Second, your existing marriage to Jill is valid at least as of the date of marriage, for all statewide applications under California law. It is hard to imagine that your post-marriage gender operations (and hence post-marriage gender status as a male) in any way changes that. It makes me wonder what happens to an opposite sex couple where one subsequently completes the procedures that you have undertaken (i.e., opposite genders marry, but then one changes their gender so they are both now the same-sex) - would that invalidate the marriage?  Complicated stuff.

Third, no California statute speaks to gendered changed individuals as qualifying as a man (in your case) for purposes of marriage, where they were born as a woman, for purposes of Family Code 300 or the amendment to the California constitution (Proposition 8) that occurred after your marriage. This means to me that it would require an appellate decision (or legislative enactment) to provide such authority and I can't tell you of any specific California case that has so found but, again, I've not researched it in detail. If California does accept your sex change as legally making you a male this would improve your position under federal law, discussed below. Do you have an affidavit from your doctor verifying that the surgery changed your sex designation? Have you investigated amending your birth certificate? I recommend it. The legal viability of sex change is a matter for states to determine, according to the 10th Amendment of the United States Constitution. 

Fourth, I would be concerned that dissolving your existing marriage without a clear understanding of these issues could place you at risk in the sense that, at least as of today, you can't remarry Jill IF you are legally a woman. Hence, I would be very careful about dissolving your existing marriage. You would have exactly the same rights in California as a same-sex married couple as you would as domestic partners. However, if you dissolved the marriage, didn't entered into a RDP, and then some court ruled later that your remarriage was not legally valid you would have no legal status other than possibly as a "putative" domestic partner or spouse. This could negatively impact your legal rights and responsibilities, and increase litigation costs, should the relationship end.

Fifth, at this time, federal law especially as it relates to tax filing status, isn't bound by any state's statutes and doesn't recognize same-sex marriage for that purpose and a number of others. This results from the Federal Defense of Marriage Act and a history of gender prejudice, among other things.

I also don't know whether federal law recognizes the gender change as making you a male since your sex-change operation (but it might, as discussed above). I am aware of at least one federal administrative case that suggests that if California recognizes your sex change operation, you might qualify as an opposite gendered person under federal law at least for some purposes (i.e., interpreting immigration rules and statutes per In Re Lovo-Lara).

Sixth, I can't see how remarrying under your new name, and post-surgery, would add anything to the mix, legally speaking.  You have changed your name and so Jill is now married to Alex. The only area where it seems it might matter from a legal perspective is qualifying for some status or benefits under federal law. It doesn't add anything in California for you to divorce and remarry under your current name and gender. I recognize you haven't asked about federal legal status and this may be irrelevant to you, and I don't pretend to be an expert on federal law.

______________

I cannot resist speaking to your situation as a metaphor for all of us. My belief is that until we each expand beyond our myopic judgments of what others should choose for themselves our internecine cultural, gender, familial, racial and nationalistic struggles will escalate. Mind you, any student of human history knows that such is part of our collective personality structure - that we ban together against 'outsiders' to protect our group - and possibly this trait is even a reason for our success as a species thus far, if not for the "others" who were sacrificed. In an increasingly crowded and heterogeneous world the things that worked before may presently assure our common peril.

Pioneering such as yours challenges us to rethink our biases, and sometimes even to consider that they might only be artificial points of view 'full of fit and fury, signifying nothing.' We can just as easily hold a belief with righteous self-certainty one day only to hold its opposite to be true with equal earnestness the next (or simply recognize that we were mistaken in the first instance). In my experience as a family attorney who has listened to countless individuals express what they think went wrong with their marriage or domestic partner, and in the course of my own life, I am always humbled how little we and I know 'for sure' and how the "truth" shifts from moment to moment. When we misplace humility we tend to become fixated on forcing others conform to our expectations - inevitably leading to conflict. 

Our brains may actually be hard-wired to hold biases. Most people recognize they have little control over the thoughts that pop into our minds. I suspect that we don't lose biases as an effort of will, but instead that they fall away as part of a larger process. Until they do fall away, the trick may be simply to remember to distrust these thoughts and not to believe they are true simply because they arose. Certainly that strategy might relieve the emotional component to prejudice.

All beings desire peace, and freedom. May each of us find it in our own way. But perhaps the web of our interdependence requires that we allow others to do so, first..., I don't know, dear reader. What makes sense to you?

    "(a) At a hearing on any order to show cause or notice of motion brought pursuant to this code, absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties.

    (b) In appropriate cases, a court may make a finding of good cause to refuse to receive live testimony and shall state its reasons for the finding on the record or in writing. The Judicial Council shall, by January 1, 2012, adopt a statewide rule of court regarding the factors a court shall consider in making a finding of good cause.

    (c) A party seeking to present live testimony from witnesses other than the parties shall, prior to the hearing, file and serve a witness list with a brief description of the anticipated testimony.

If the witness list is not served prior to the hearing, the court may, on request, grant a brief continuance and may make appropriate temporary orders pending the continued hearing."

Family Code section 217 will cause a sea-change in day to day family court proceedings across our state, unless family court judicial officers ignore it to the limited extent possible by court rules.  It will likely have immense financial and resource consequences upon not only the courts but upon parties to family court proceedings.  It will force the state government in coming years to study whole new paradigms for resolving divorce and domestic partnership dissolution outside the adversary template, including those currently practiced in New Zealand and southern Australia. 

It will also pressure parties to consider mediation, and collaborative processes which occur outside congested courthouses, much more carefully.  The costs of adversary litigation are about to sky-rocket, making mediation even more appealing from a financial perspective (I have written extensively about the emotional and psychological benefits here an elsewhere).  There simply is no governmental money available to absorb the coming Elkins Onslaught. For more information about an alternative method for resolving family disputes, please visit us at www.DesertFamilyMediationServices.com.
  
At the same time, at least in the short run taken together with some of the other revisions that become effective next month, it may encourage more people to litigate more stubbornly and so make mediation seem less attractive than it did before the changes (just the reverse will be true).  Some folks will mistakenly assume that this invites the use of court hearings as a live-testimony forum for sharing unresolved complaints relating to their marriage or domestic partnership dissolution with the other party in open court.  Instead, judges will sustain objections to such irrelevant material and parties who seek to use Family Court as a platform to air relationship grievances will find themselves alienating the trier of fact in ways that will have adverse consequences to them beyond just the time and expense of the exercise. 

The purpose of today's Blog is to introduce you to section 217 and the new changes.  I will follow up with more articles in coming weeks.  Without a doubt the new rules will make all the information I provide on my websites more relevant and timely for my readers. 

Q.  If my wife is living with a male renter, and I suspect they are boyfriend-girlfriend, does this affect the amount of spousal and child support that I have to pay?


A.  The supported party's cohabitation with a person of the opposite sex gives rise to a rebuttable presumption affecting the burden of proof of decreased need for spousal support. FC § 4323(a)(1).  It has no impact on child support obligations, however.

FC § 4323 states:

As stated in Marriage of Schroeder (1987) 192 Cal.App.3d 1154, 238 Cal.Rptr. 12, the policy underlying section 4323 [former Civil Code section 4801.5]

Schroeder involved a post judgment modification of a permanent support order by the payor, not an initial pendente lite request by the supported spouse. The evidence was the former wife had been living with a man of the opposite sex for 18 months, that he didn’t pay rent, that he was regularly employed, that he did not contribute to utilities, but that he did contribute to joint vacations. The appellate court found those facts to strongly suggest a cohabitation. Even then, the issue on remand was not a termination of the support obligation but a determination of the value of the benefits incurred by the former wife which might reduce her needs.

Cohabitation has been loosely defined as not necessarily holding oneself out to be Husband and Wife, but is more than a simple roommate or "boarding arrangement." There must be a showing of a sexual, romantic or at least a "homemaker-companion" relationship. Marriage of Regnery (1989) 214 CA3d 1367, 263 CR 243.

Marriage of Geraci (2006) 144 Cal.App.4th 1278 reversed a trial court failure to consider the effect of an admitted cohabitation lasting several years with the following comments:

* * *

In Marriage of Bower (2002) 96 Cal.App.4th 893,117 Cal.Rptr.2d 520 there were two permanent support modification hearings filed by the payor husband, one held in 1997 and the second in 2000. At the 1997 hearing the evidence was that the Wife was sharing expenses and living full time at a residence with a man described as a ‘roommate.’ The Bower court noted that the Husband had been wise in not appealing that order. However, by the time of the second application over three years later in 2000, there was evidence that she was sharing at least one bank account with her "roommate," and she even stipulated she was cohabitating.

Under those circumstances, together with evidence of an increased income from her employment, it was not an abuse of discretion to reduce the Wife’s spousal support and then terminate it at the end of one year.

Bower and those cases cited herein regarding cohabitation are dealing with modifications of Permanent Spousal Support orders. They all are based upon the "two can live more cheaply than one" theory or upon actual expenses of the supported party being regularly paid for by the cohabitant beyond loans and gifts. There is no reported case that upholds a trial court refusal to provide spousal support at the temporary hearing stage.  However, I suspect most courts will apply the presumption there as well.

The philosophy underlying the cohabitation statute is that parties who share a household and live in a meretricious relationship should not benefit by continuing to receive spousal support without consideration of the reduced need this sharing produces.

Finding cohabitation just allows for the aid of a statutory presumption to assist in the presentation of factual evidence. The effect is the same without the presumption even for mere roommates, as those contributions to the obligee's living expenses may also support a factual finding sufficient to modify spousal support since rent is income.

Nonetheless, cohabitation is offensive to some judges and they be willing to terminate the spousal support obligation instead of merely reducing it.

Note that once you prove a cohabitation the burden of proof shifts to the supported party to show that they still need support. That is their problem, not yours.  Nonetheless, if you can show a substantial reduction or the end of any need for alimony you would be well advised to present that evidence.

Finally, you are not entitled to know the income of the other party as new-mate income cannot be considered by the Courts. 

For domestic partnerships, even though the statute speaks in terms of opposite sex couples it is highly unlikely that a trial court would not reduce or terminate partner support with a same-sex couple where male former partner is cohabiting with a male and so on.  Since 2005 the California Family Code is to be interpreted as applying evening to same sex couples.

If a homosexual (as opposed to bi-sexual male) is now living with a female should the opposite sex presumption be applied?  The answer would seem to turn on whether the relationship is romantic and/or intimite.  Similarly, if a former wife is now living with a female roommate and it can be established that relationship is intimate, then the same reasoning as in the above cases will likely apply.  We await appellate court pronouncements on these interesting questions.

"(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves either of the following:
* * *
(c) For the purposes of subdivision (a), it shall be deemed that a premarital agreement was not executed voluntarily unless the court finds in writing or on the record all of the following:

(1) The party against whom enforcement is sought was represented by independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel.

(2) The party against whom enforcement is sought had not less than seven calendar days between the time that party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed.

(3) The party against whom enforcement is sought, if unrepresented by legal counsel, was fully informed of the terms and basic effect of the agreement as well as the rights and obligations he or she was giving up by signing the agreement, and was proficient in the language in which the explanation of the party's rights was conducted and in which the agreement was written. The explanation of the rights and obligations relinquished shall be memorialized in writing and delivered to the party prior to signing the agreement. The unrepresented party shall, on or before the signing of the premarital agreement, execute a document declaring that he or she received the information required by this paragraph and indicating who provided that information...."

Notice how these provisions are almost shouting 'independent legal counsel.'  It is rare to see a phrase repeated so often within the same code section. 

So examine whether your agreement, and the required separate writing, seem to address these requirements.  Also, check to see whether the other conditions for enforceability are met.  There may be other reasons why your Prenup will not be enforced, as where undue influence was exerted to obtain your signature (notice the seven day waiting period, which is intended to overcome the social pressures where a wedding date is looming).  But you would be ill-advised to embark upon a challenge to the agreement without legal counsel this time around; don't compound the problem.

A final comment:  Setting aside the prenuptial agreement may only have a limited affect upon the status of the house.  For instance, the rules relating to transmutations and reimbursements still apply.  I have written about those elsewhere in this Blog, but if the house was acquired by your wife as her separate property independently of the Prenup it remains her separate property even if the agreement is voided.  However, if there was a mortgage and it was paid down with her earnings during marriage the cancelation of the Prenup may benefit you because the community will thereby gain a Moore Marsden reimbursement right in the principal pay down and appreciation.

Again, seek out an experienced family law attorney.  And, I always urge that people consider mediating these types of family law disputes.

T.W. Arnold
http://www.ThurmanArnold.com

Q.    I keep hearing the phrase "interspousal fiduciary duties".  What does it mean?

Fiduciary Duties Described

Q.  What rights do I have to permanent spousal support?

A.  Permanent spousal support is not usually "permanent," although it can be in cases of very long marriages.  Lawyers and judges also refer to it as post-judgment spousal support, alimony, judgment spousal support, or long term support.

Unlike temporary spousal support, long term spousal support is only issued after a final judgment of Dissolution of Marriage or Legal Separation.  It is equally available to domestic partners.  Also unlike temporary support, it is not based on any computer formula or state or county guideline, but must be determined and fixed depending on the facts of every individual case.  If long term support is important to your future wellbeing, you are going to need an experienced support attorney.

There are several very important rules to keep in mind.  First, a marriage in California which lasts more than 10 years (defined as the time between date of marriage and physical separation), is "long term" marriage.  The general rule is that in marriages which are not long term, spousal support should not be payable for more than one-half the length of marriage - or to put in differently, the law presumes that the recipient spouse should be rehabilitated and so become self-supporting in a period equal to 1/2 the marriage.  However, this presumption becomes less important in cases involving older couples, especially where people can not be realistically expected to re-enter the work force, in cases where there children who remain minors, or where the party asking for support has a debilitating disease or disability.

There is no magic ratio for how long a former spouse might be ordered to pay long term support.  Each case depends upon its own facts, the quality of your attorney, and the attitudes of the family court judge.  Even in cases of long term marriages, the support obligation typically will end at some point in time.  However, if usually will not end on its own - meaning that when a trial court orders long term support it will reserve jurisdiction to continue to extent it, until some time when a party petitions the court to terminate support and a judge finally says "enough is a enough." 

Imputed income is often an important argument in long term support marriages, where one party convinces the court that the other party is shirking or failing to genuinely try to become self-supporting.  It is sometimes necessary to have the supported spouse evaluated by a vocational rehabilitation expert. 

There are four components to an award of of permanent support:  1) Amount; 2) duration; 3) substantive increases or decreases over time; and 4) jurisdictional step downs and ultimately a termination date.

Second, Family Code section 4320 is a critical support statute.  I have provided a link and uploaded it so that you may read it.  Essentially it sets forth all the factors that the court must consider in setting post-judgment support, and you will see that it is not an exhaustive list and the court can consider anything else it deems important to the decision.  Support factors include the extent to which the earning capacity of each party is sufficient to maintain the marital standard of living established during the marriage, considering:  a) the marketable skills of the supported party, the job market for those skills, the time and expense required to train that party including education and b) the extent to which the supported party's present or future income earning ability is impaired by periods of unemployment or were incurred during the marriage to permit that party to devote time to domestic duties.

Another factor is whether the supported party contributed to the attainment of an education, training, license, career, or position by the supporting party. 

Another factor is the ability of the supporting party to pay, taking in account that person's earning capacity, income, and assets and standard of living.

Another very important support consideration is the needs of each party - including both. 

Another factor is the obligations and assets of each spouse, including the separate property which each has or gained upon the dissolution.

Another is the ability of the supported spouse to engage in gainful employment without interfering with the needs of dependent children in their custody.

The age and health of the parties is critical in some cases.  65 years of age is the presumed retirement age for adults today, and courts cannot order a person to continue to be employed beyond that age - but, if they make that choice, their income can be considered.

A documented history of domestic violence can affect the right to receive support or the obligation to pay it.

The tax consequences between the parties must be considered.

And, basically, as I said, any other specific facts that trend one way or another.

The three most common factors are the marital standard of living (MSOL), need and ability to pay, and the assets the parties end up with upon divorcing.

Courts cannot order lump sums for support.  Spousal support is generally taxable to the recipient and deductible to the payor, but there are very specific IRS requirements that must be met for this to actually be so.

Courts are required to state their findings on each relevant issue in writing.  In practice though, most people settle their divorce cases by way of settlement agreements.  Unfortunately, lawyers often leave out these findings so that when a court is asked, down the road, by the payor to terminate or decrease support, or by the payee to increase it, there is no map for the court to use to base its modification findings on.

If support is an issue for you either way, please hire a competent lawyer.  There are many attorneys moving into family law from civil practices who are clueless about these things.  Caveat emptor!

Q.  How is temporary spousal support calculated in California?

A.  In order to be entitled to spousal support, parties must be married or be registered domestic partners.  Spousal support (which is not usually referred to as "alimony" in California) is available in dissolution proceedings, actions for legal separation, and in connection with domestic violence applications. 

Spousal support orders may be temporary, or they be what is called permanent.  Different rules apply to how temporary support is figured than to permanent or long-term support.  I address permanent spousal separately.

Temporary spousal support is designed to preserve the status quo pending a final judgment.  Family Code section 3600 provides that during the pendency for dissolution of marriage or legal separation or in any proceeding where there is at issue the support of a minor child, the court may order the husband or wife to pay any amount that is necessary for the support of the husband and wife (subject to limitations contained in FC section 4320 and FC section 4325).  Again, parties dissolving domestic partnerships may also be awarded support.

Temporary spousal support has nothing to do with the length of the marriage.  Courts look at what the spending pattern was pre-separation and issues a spousal support award based upon need.  If there isn't enough money on the basis of need, then an amount is ordered based upon the higher earner's ability to pay.  A party seeking spousal support isn't deprived on the right to receive support even if they have income - the question is the relative income circumstances of the two parties.

Most California counties have formulas that determine temporary spousal support, but the two most important are Santa Clara and Alameda counties.  Essentially the spousal support formula for Santa Clara County - which is the dominant one - is as follows:  From any amount which is not allocated to child support, take 40% from the net income of the payor spouse, less 50% from the net income of the recipient spouse.  The resulting number is the temporary spousal support.  You do not need to have children to be entitled to receive spousal support.

As a practical matter, courts typically use one of two computer programs that generate these numbers:  Either the Dissomaster or Xspouse.  The Indio courts use Xspouse and the Santa Clara guidelines.

Into one of these programs are inputted the respective gross incomes of the parties.  If there are children of the parties, the custodial timeshare in percentages is inputted (because only a party who has physical custody for more than 50% of the year can claim the tax benefits of HH/MLA or head of household status, the programs require one to be considered to have 51% even in true joint custody arrangements). 

Only certain expenses matter for purposes of temporary support in California.  What doesn't matter at all is most personal expenses (like mortgage payments, utilities, debt).  This effectively ignores the entire debt structure of the parties at time of separation.  Health insurance, union dues, and mandatory contributions to retirement (i.e., typically not IRA contributions), and obligations existing to other minor children living in one party's home, or as to which an actual court order requires they make support payments, are also entered.  The support program 'tax effects' these numbers and figures out the net incomes of the parties.  It renders a number that tells the Court how much the higher earning spouse must pay for purposes of a court order.

Since the court determines the support obligation some weeks after a request for support is made (by way of Motion for Order to Show Cause application), it typically makes the support order retroactive to the date of the filing for the request.  Most courts order support payable one-half on the first and fifteenth of the month.  For this reason, if you file for support on the 5th day of the month, the court will not make support retroactive to the 1st but will start of the obligation on the 15th day of the month.

This might sound like temporary spousal support is easy to fix and who needs a lawyer?  This is not at all the case.  The final support numbers depend upon how much income the Court is attributing to each party.  Each is required to submit before the hearing an FL-150 Income and Expense Declaration.

For instance:  A husband's (and wife's) income numbers are usually but not always based upon historical earnings, and the California judicial council form (FL-150) requires both to set forth there total gross for the past 12 months and also the past month.  The legal assumption is that historical earnings are a reliable guide to future earnings, but this may not be at all true.  Especially in today's economy, historical earnings may not be indicative of what the income stream will be going forward.  This information needs to be credibly presented to the Court.

In cases where one party is a self-employed spouse, their net pre-tax earnings must be determined after deducting business expenses.  This is a common and complex area of dispute, because what is deductible for purposes of Schedule C accompanying a tax return according to the federal government is in no way binding upon California courts for purposes of figuring support.  If somebody works from home and charges part of the mortgage expense as a business deduction, that expense may be added back into the income stream as being available for support.

Another support battleground often involves imputed income.  What if one party refuses to work, or insists on working at a lower paying job?  Perhaps a support recipient believes they will get more money from their spouse if they have no job but if they tried to get one, they could?  What if one party claims that they aren't working and that no jobs are available?  Imputing income cuts both ways, and is extremely sophisticated. I will address another blog to it.

Incidentally, while only temporary alimony is calculated in this way, child support is always figured in this manner regardless whether there is a spousal support obligation.