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How to Present Alzheimers' and Dementia Sufferers' Cases in Divorce Proceedings - Part 1 of a Series!

Spousal Support for Clients Suffering the Economic Ravages of Dementia.... And Related Issues

By T.W. Arnold, CFLS, AAML

"The bearers came to take me to my new

husband’s house, and I felt a joy all through my body

Instead the bearers have carried me into a deep forest

No one I know is here"[1]


Preface

This Blog arises from several cases I've encountered over the past few years in our Palm Springs based divorce practice. I've represented elders who suffered from dementia, and I've represented elders whose spouse was suffering the onset of this terrible condition, and its more disease and pain related incarnations. What surprised me at first to learn was the absolute dearth of guidance out there for legal professionals, in terms not only of practice guides and published appellate decisions, but also within the mental health community, about how to manage these cases in a litigation setting.

Neither Michael C. Peterson nor myself could find one officially reported case involving dementia suffering spouses in divorce, except as to whether an action brought by a person lacking mental capacity, or who lost same in the interim, can be maintained. This was shocking to me, but not surprising upon reflection. It is unlikely that a seriously impaired Alzheimer's spouse will survive until an appeal is decided, or much less have their interests best represented by continued litigation by their loved ones or caretakers. In any event, given the lack of direction in the popular literature and professional treatises on this subject, I've been forced to figure out the best way for my clients on my own. Which I prefer anyway.

There is a flood of these types of cases coming, as the statistics addressed below irrefutably predict.

My goal in this Blog is to provide brainstorming to legal professionals that might help them in promoting or resisting the claims that will arise for their clients in Alzheimer type cases, and to give some hope and guidance to the family member non-lawyers who will find this Blog on Google and the other search engines. This article is therefore a work in progress, and I will keep coming back to groom and layer it until I am satisfied with it. I will also spin off some related articles. If you find this article in September, 2017, please come back to review it in the ensuing months if the topic is important to you, or to your loved one.


Dementia and Its Impacts Upon Individuals and Couples In Divorce

Many family law attorneys have witnessed the challenges faced by elderly people suffering from dementia. Often our introduction began with our aging parents, or their siblings. These persons may have been our mothers, or fathers. As the statistics outlined below demonstrate, this disease-based extinction of self is more than an existential threat to each of us. It may be a matter of the odds. And its ravages are heartbreaking: Alzheimer’s disease is nothing if not intimately personal, and outrageously expensive.

Beyond our personal Universes, dementia has complex implications for matrimonial law. Increasingly our legal community will be asked to consider assisting clients with dementia-related difficulties who face the double whammy of the illness onset and a divorce spawned fiscal crisis. The economic consequences of an Alzheimer’s diagnosis are disastrous: It is, for a huge swath of the population aged 65 and beyond, the most expensive health care issue that elder people commonly face. In one study that examined the financial costs for Medicare beneficiaries who suffered from dementias for the five years before their deaths, the average overall total cost per decedent with dementia was $287,038, as compared to that for those who died of heart disease ($175,136), cancer ($173,383), or other causes ($197,286). The out of pocket costs for patients diagnosed with dementia amounted to $61,522, 81% higher than that for patients without dementia ($34,068).[2] These are median figures; individual costs can be much greater.

The number of dementia-disabled adults with cases pending in family law court will expand as the Baby Boomer cohort (born between 1946 and 1964) marches on. The number of Americans ages 65 and older is projected to more than double from 46 million today to over 98 million by 2060, and the 65-and-older age group’s share of the total population will rise to nearly 24 percent from 15 percent.[3] Among those aged 65 and older the divorce rate has roughly tripled since 1990, reaching six people per 1,000 married persons in 2015. Although these increasing rates leveled out in 2008[4], the statistics indisputably imply that more of such people, on either side of the aisle, will need our help.

For instance, in the United States 50% percent of first marriages, 67% of second, and 73% of third marriages reportedly end in divorce.[5] Some mental health professionals speculate this is explainable because there is less “glue” to stabilize second or later marriages that begin later in life, and imply that spouses in those situations may be more likely to ‘cut and run.’[6] This hypothesis appears to be more a conclusion of popular psychology than from peer-reviewed studies. Nonetheless, it is established that marriages that begin in later life do not appear to have the durability of those maintained over longer periods. As of 2015 more seniors were ending their marriages by divorce than through death. This has been dubbed “a gray divorce revolution”.[7]

Similarly, some authors suggest that the onset of a spouse’s serious illness itself increases the likelihood that a divorce will follow, and that these burdens tend to fall disproportionately upon women if they become ill.[8] They posit that women are more likely to care for a seriously disabled spouse, while men are not. If arguably true, the research also doesn’t yet prove that – but it does establish that women are much more likely than men, overall, to perform the role of caretaker to members of their family.[9]

It seems rational to suppose that the onset of Alzheimer’s itself may lead to premature divorce, particularly in 2nd and 3rd marriages or those of a short duration. Certainly some among us have had such conversations with aging clients or their non-spouse family members under these circumstances, where concerns were expressed about the costs of remaining married in light of an unexpected Alzheimer’s diagnosis and/or the high physical and emotional burdens of providing care to a dementia suffering spouse.

Since many of these divorces involve re-marriages that are undertaken just before or after retirement, a high percentage of them do not include substantial community property estates to divide for use to fund dementia and related care, and are not “long-term” marriages that provide much traction for traditional spousal support analysis purposes. It is not uncommon that these parties have separate estates of disparate value, that they enjoy low housing or other living expenses, and that even if relatively wealthy that they have lived frugally up to the point that one needs highly expensive personal care. To the extent that men continue to control a larger slice of the wealth of families than women, the vulnerability of this gender segment of the elder population will continue. How do we adequately address marital standard of living factors in such cases, where suddenly living expenses and “necessaries of life” increase radically as compared to pre-onset status quo?

I need to comment that there seems to be a dearth of data for same-sex couples, and for gay men in particular, and I apologize for the gendered and generalized tone of this article in its present incarnation. No disrespect or lack of sensitivity is intended. I will be back once I dig deeper to layer this out in future versions. Frankly, in the dementia settings I've encountered over my 35 plus years of practice, same-sex partners seemed to be more dedicated to their partners than opposite-sex couples when this awful disease struck, but that observation is hardly scientific or even reliable.

Dealing with cognitively impaired clients, or representing their spouses, raises questions about practice style and ethics for the attorneys on both sides of these elder divorce cases. For instance, perfectly appropriate procedural and evidence objections are especially potent as a means of thwarting property and support claims or to stonewall the process, since laying foundations and obtaining testimony from an Alzheimer’s affected witness may be practically impossible. If we represent a dementia sufferer, how do we present their cases when our chief evidence giver can no longer access personal knowledge? Using third party percipient witnesses (i.e., children) can be difficult particularly if the couple led a fairly insulated life, and accordingly there are often limited independent witnesses to fill in the blanks.

If we decide to undertake such cases we need to explore creative options to address the unique issues that arise in divorces where a spouse suffers from Alzheimer’s disease: The California Family Code (and the Evidence Code) make little or no specific provision for how to deal with the unusual circumstances posed by these cases. Not surprisingly given the condition and age of these litigants, few reported decisions have ruled upon these issues within the family law context. The trial court’s decision is usually final, one way or the other.

Section I of this article provides an overview of dementia and Alzheimer’s basics. This landscape includes a brief discussion of who it is that tends to suffer from this disability and when the onset typically begins, as well as about its progression, the types of care that are commonly available, the costs for the varietals of care, and the limits on what federal and state governments may contribute to and so mitigate the out of pocket payments for care, but not living expenses, that a spouse or the community or separate estate might generally be accessed.

Section II discusses strategies for obtaining temporary spousal support awards that are proportionate to the costs of dementia related care and associated living expenses, consistent with existing precedent, and also opposing such requests. Section II offers legal authorities for deviating from guideline support schedules. It contains a discussion about factors which negatively impact the length or amount of spousal support awards in temporary support cases generally, which might have out-sized consequences in elder dementia divorce, and it attempts to weave some arguments together in order to address these special circumstances for both sides in such disputes.

There is no dispute that Alzheimer’s is indeed a “disease,” a characterization that usually implies a status or process that someone does not choose, and cannot avoid. Larger societal questions exist over whether individuals or the State should subsidize the costs for victims of this disease, and if so for how long. Therefore, Section III raises issues of practical and philosophical concern, and opines about legislative changes that may be justified to anticipate a coming ALZ storm.


I. Overview of the Dementia/Alzheimer’s Basics

A. What is Alzheimer’s?

Alois Alzheimer (1964-1915) was a German neurologist who is credited with first identifying the disease in 1906. Dr. Alzheimer noticed changes in the brain tissue of a woman who had died of an unusual mental illness. Her symptoms included memory loss, language problems, and unpredictable behavior. After she died, he examined her brain and found many abnormal clumps (now called amyloid plaques) and tangled bundles of fibers (now called neurofibrillary, or tau, tangles). On that basis he developed a hypothesis that resonates today in a very large way. Current science concerning the etiology of Alzheimer’s disease is beyond the scope of this article, and probably not relevant to our task.

The National Institute on Aging (“NIA”), a division of the United States Department of Health and Human Services, describes the disease process as follows:

“Alzheimer’s … is an irreversible, progressive brain disorder that slowly destroys memory and thinking skills, and eventually the ability to carry out the simplest tasks…. Alzheimer's disease is currently ranked as the sixth leading cause of death in the United States, but recent estimates indicate that the disorder may rank third, just behind heart disease and cancer, as a cause of death for older people.”[10]

Whether Alzheimer’s is the 6th leading case of death in the United States, or as other estimates suggest the 3rd overall, the bean counters maintain that one in three seniors presently die from Alzheimer’s.[11] Therefore, for many death from old age equals death from this terrible disease.

Its “signs and symptoms” are described by the NIA:

“Memory problems are typically one of the first signs of cognitive impairment related to Alzheimer’s disease. Some people with memory problems have a condition called mild cognitive impairment (MCI). In MCI, people have more memory problems than normal for their age, but their symptoms do not interfere with their everyday lives. Movement difficulties and problems with the sense of smell have also been linked to MCI. Older people with MCI are at greater risk for developing Alzheimer's, but not all of them do. Some may even go back to normal cognition…. The first symptoms of Alzheimer's vary from person to person. For many, decline in non-memory aspects of cognition, such as word-finding, vision/spatial issues, and impaired reasoning or judgment, may signal the very early stages of Alzheimer’s disease.”[12]

The NIA classifies dementia type impairments as “mild,” “moderate,” and “severe.” In the mild stage, “Problems can include wandering and getting lost, trouble handling money and paying bills (citation omitted), repeating questions, taking longer to complete normal daily tasks, and personality and behavior changes.” In the moderate stage, “damage occurs in areas of the brain that control language, reasoning, sensory processing, and conscious thought. Memory loss and confusion grow worse, and people begin to have problems recognizing family and friends. They may be unable to learn new things, carry out multi-step tasks such as getting dressed, or cope with new situations. In addition, people at this stage may have hallucinations, delusions, and paranoia and may behave impulsively.”[13]

In the severe phase “People … cannot communicate and are completely dependent on others for their care. Near the end, the person may be in bed most or all of the time as the body shuts down.” This is the precursor of death.[14]

While Alzheimer’s can only be definitively diagnosed following an autopsy and the examination of brain tissue, during life physicians have various tools they utilize to generate a working hypothesis to identify the condition. These can be pivotal in applying for and obtaining governmental or other insurance benefits, and possibly for convincing your judge that your client is in need of what may seem extravagantly expensive care, and that a GAL (Guardian Ad Litem) should be appointed.[15] They include:

  • Asking the person, and family members or friends, question regarding the patient’s medical history, daily activities, and changes in behavior or personality
  • Conducting tests of memory, attention, counting, problem solving, and language abilities
  • Undertaking a differential diagnosis to exclude other possible conditions and causes
  • Performing brain scans like CT’s and MRI’s, or Pet scans, to rule out other possible causes

B. The Demographics of Alzheimer’s Disease

Alzheimer’s disease appears to be gender biased, and even racially prejudiced: Unlike death, it is not even-handed in distributing its misery. It has statistical preferences that are likely to burden certain populations more than others. Women are seen as having a higher likelihood of contracting the disease, if only because they tend to live longer than men – two-thirds of Americans with Alzheimer’s are women.[16] African-Americans are about twice as likely to experience dementia as are similarly aged older whites, and Hispanics are one and one-half times as likely.[17] Otherwise, dementia surfaces fairly predictably overall, albeit with a brazen randomness among individuals, based upon age.

According to the Alzheimer’s Foundation of America (AFA), which exists to support victims of Alzheimer’s and their families, as of 2017 as many as 5.5 million Americans have been diagnosed with some level of Alzheimer’s related dementia.[18] In California, the AFA estimates that some 630,000 individuals aged 65 and beyond will receive this diagnosis in 2017. One-sixth of these will qualify between ages 65 and 74, and five-sixths will qualify above age 75. While one in ten Americans at age 65 and above currently receives the diagnosis, these numbers are escalating alarmingly. The AFA estimates that number to increase to 3 in 10 by 2025.[19] This is not surprising given the realities of the Baby Boomer cohort: With national life expectancies at historic increases and set to rise further, the Population Reference Bureau (PRB) reports that the number of persons age 65 and over at 46 million today will increase by another 18 million souls between 2020 and 2030.[20] The number of people aged 85 and older is projected to triple from 6 million today to nearly 20 million by 2060.[21] Californians will share those statistical proportions.

The PRB has created graphs that break down where older Americans live by county. You, as a legal professional, can predict at a glance some proportion of the ratio of cases you might expect to see in the coming years, based upon where your client base resides.[22] Practitioners will bump into these cases in differing degrees, depending upon where their shingles hang.


C. What Treatment Options Exist?

Current approaches focus on helping people maintain mental function, in managing behavioral symptoms, and are directed towards slowing or delaying the symptoms of disease. They also focus on the mental health and stress level of family members and other caretakers, because the emotional burdens of caretaking an Alzheimer’s victim are immense.

The caretakers themselves, while not our clients beyond their possible involvement as GALs, are likely the persons upon whom we must rely in order to manage our dementia related family law cases. The burdens these folks shoulder are immense and potentially soul consuming. As legal professionals, we need to take care in preparing declarations and presenting evidence on behalf of our clients, where personal knowledge may not exist to anywhere near to the degree we are accustomed to in our other cases. We must also be alert to conflicts of interest, particularly where the family member is advancing costs for their loved one, must serve as our conduits to the client.


D. What Are the Options and Economic Costs for Alzheimer’s Care?

Depending upon the stage and progress of the disease, levels of care commonly include the following:

  • Adult Day Care

Adult care centers are intended to provide relief to full-time caregivers, as well as the ailment sufferers. They allow a caregiver to park their charge at a day-time facility, while the caregiver gets a break to run errands, rest, or have a life. They are particularly useful for working caregivers, and typically provide services for 7 to 10 hours. Some provide weekend, or evening, care for the patient.

For the patient, adult care centers seek to stimulate and occupy them with social and other activities, and may provide counseling services for the person with dementia and their families. They may also provide personal care, nutrition, and medical health services. Some provide speech, occupational, or physical therapy.

As is true of all the costs for care in this arena, projections are all over the map and just as the quality of services differs. Many are governed by state regulations, which limit the number of supervised patients per licensed caregiver. The costs that a patient may be charged are often capped, depending upon what governmental entity is involved, if any (i.e., Medicare, Medicaid or Medi-Cal, and Veteran’s programs).

The costs for adult day care varies, often depending upon “service intensity,” which includes meal frequency and costs, the transportation costs of picking up and returning a patient, and so on as applicable. Labor costs for facility caregivers typically eat up half of what is charged, with meals and transportation comprising the remainder of expenses before profits.

According to statistics provided by the National Center for Assisted Living (NCAL), average monthly day health care in California is $1,688/month.

  • In-Home Care

According to the ALZ, in-home services commonly include companion services (supervision for recreational activities or visiting); personal care services (help with bathing, dressing, the toilet, eating, exercising); homemaker services (housekeeping help, shopping, meal prep); and skilled care for wounds, injections, PT, and other medical needs that must be serviced by licensed professionals.

The costs for in-home care, as one would expect, also varies greatly depending upon private pay verses insurance and the party’s state of health. According to NCAL, the median cost for home health care involving “homemaker services” in California is $4,385/month. Throw in a home aide for more extensive personal care, and the number increases to $4,576. These costs are climbing every year. NCAL estimates that by 2020 these monthly costs will climb by over 10%.

  • Residential Care (Assisted Living)

Often referred to as ALs, treatment become more complex, and costs begin to really stretch budgets even for high net worth individuals and couples, in assisted living facilities. Options include “retirement housing” for early-stage Alzheimer’s sufferers who retain some ability for self-care; “assisted living” struggles to bridge the gap between independent living and a nursing home. It typically offers a combination of housing, meals, and support services and health care. Many assisted living centers are designed for seniors generally, but provide varying levels of Alzheimer’s care too.

NCAL reports that nationwide women comprise 70% of the ALs population. 10% of residents are age 65 to 74; 30% are between 75 and 84; and 53% are over age 85. The median length of ALs stay is around 22 months, after which some 60% of the residents will move out of assisted living as part of a transition to a skilled nursing center.[23]

Nationally, the costs for ALs care ranges from $2,525 to $5,745/month for seniors not specifically diagnosed with Alzheimer’s.[24] In California the median cost is $4,000/month.[25] Treatment to address Alzheimer’s care on average costs an additional $1,150, monthly. These charges are just for the care services at the facility itself, and do not include costs for prescriptions, complex medical treatment, or typical personal expenses.

  • Nursing Homes

These are often referred to as “skilled nursing facilities”. Nursing homes provide 24-7 care, and long-term medical treatment. Staff are trained to address nutrition, care planning, recreation, spirituality, and medical care. Quality of care differs wildly among different facilities.

These facilities begin to exponentially push the cost envelope. Almost all nursing homes or skilled nursing facilities are equipped to provide services for those stricken with Alzheimer's or dementia. Most do not charge additionally for related services since comparatively these individuals do not require more care than other nursing home residents, excluding memory care units – discussed below.

In 2016, the national average amount paid for a shared room in a skilled nursing facility was $220/day or $6,600/month. Golden State daily averages ranged from $140 - $770. Sharing a residence reduces the cost to 80-90% of that for a private room.[26] Unfortunately, sharing a room is not always an option for persons with aggressive forms of dementia.[27]

The median cost in 2016 for a semi-private room per month in California was $7,604, which is projected to increase to $8,558/month by 2020. A private room in 2016 cost $9,338/month and will likely rise to $10,510/month in three years.

Monthly costs vary from county to county. For instance, in 2016 the average cost in Orange County was $7,734/month for semi-private rooms and $12,471/month for private rooms. In the greater Riverside county area semi-private rooms averaged $6,509/month in 2016, and $8,821/month for private rooms.[28]

Again, these prices often do not include the more targeted memory care unit services that the majority of such facilities offer.[29]

And, always, these numbers exclude costs that are personal to the resident – clothing, phones, computers, and trips outside.

  • Memory Care Units

Also known as Alzheimer’s special care units, these are designed to meet the specific needs of individuals with dementias. Within the setting of a skilled nursing facility, these units provide a regimen of services for Alzheimer’s patients.

E. What Government/Insurance Aid is Available for the Treatment and Care for Dementia Related Disorders?

This subject is beyond the scope of this inquiry, but to be faithful to a general overview of the subject matter so that you can give a satisfactory response to your judge’s questions about how costs can be reallocated to the taxpayers and governments, as opposed to the other spouse – a general overview is proffered.

The California Advocates for Nursing Home Reform (CANHR) is an excellent resource for a basic explication of how Medicare works, and as contrasted with Medi-Cal. As CANHR describes it,[30] Medicare is a federal insurance program paid out of Social Security deductions. All persons 65 or older who have made Social Security contributions are entitled to the benefits, as well as persons under 65 with disabilities who have been eligible for Social Security disability benefits for at least two years, and persons of any age with end-stage renal disease.

Medicare has several parts including Hospital Insurance (Part A) and Medical Insurance (Part B). If a person has not worked long enough to be covered for benefits, s/he may enroll in Part A and pay a monthly premium. If Medicare Hospital Insurance is purchased, that person must also enroll in Part B, Medical Insurance.

Medicare program participants are liable for co-payments and deductibles as well as for monthly payments for Part B coverage. Medicare is not based on financial need. Anyone who meets the age, disability and/or coverage requirements is eligible.

Medicare does not pay for all medical expenses, and usually must be supplemented with private insurance ("medigap") or consumers can enroll in an HMO plan that contracts with Medicare. After 3 days of prior hospitalization, Medicare will pay up to 100% for the first 20 days of skilled nursing care. For the next 21- 100 days, the patient will pay a co-payment. The premiums and co-payments are increased every year. There will be no Medicare coverage for nursing home care beyond 100 days in any single benefit period.

It should be noted that Medicare only pays for “skilled nursing care,” does not pay for “custodial care” and the average permitted stay in a nursing home under Medicare is usually less than 24 days. Thus, few can look to Medicare to pay for any substantial nursing home costs.

Medi-Cal is a combined federal and California State program designed to help pay for medical care for public assistance recipients and other low-income persons. Although Medi-Cal recipients may receive Medicare, the Medi-Cal program is not related to the Medicare program. Medi-Cal is a need-based program and is funded jointly with state and federal Medicaid funds. SSI and other categorically-related recipients are automatically eligible. Others, whose income would make them ineligible for public benefits, may also qualify as "medically needy" if their income and resources are within the Medi-Cal limits, (current resource limit is $2,000 for a single individual). This includes medically indigent adults in skilled nursing or intermediate care or those who qualify for Medi-Cal funded home and community based waiver programs.

The State sets a "maintenance need standard". Since January 1, 1990 the maintenance need standard for a single elderly/disabled person in the community has been $600 monthly; the Long Term Care maintenance need level (i.e., personal needs allowance when someone is in a nursing home) remains at $35 monthly for each person.

Individuals whose net monthly income is higher than the state payment rate may qualify for the program if they pay or agree to pay a portion of their income on monthly medical costs. This is called the share of cost. Individuals eligible for a share of cost must pay or take responsibility for a portion of their medical bills each month before they receive coverage. Medi-Cal then pays the remainder, provided the Medi-Cal program covers the services. This works much like an insurance deductible. The amount of the share of cost is equal to the difference between the "maintenance need standard" and the individual's net non-exempt monthly income.



II. Temporary Spousal Support for the Alzheimer’s Sufferer –

When Guideline Support Is Not Gospel, and Never Enough

Here is a fact pattern for this thought experiment that I will be coming back to (and it is also a true and accurate story of the case that inspired me to embark on this Blog, in order for me to work through "their" issues and "my" issues on the subject):

H and W marry when H is 83, and W is 70, in 2012. Both are retired. H was a successful professional before marriage, and is a widower. He has an estate worth $3.4 million, comprised of $2.9 million nontaxable municipal bonds generating a monthly income of $8k/month, $2.3k/month in SS income, other cash resources, and including a free and clear home worth $500k. W likewise is a widow. Following the DOM, H convinces W to sell her home in Sun City, and to move in with him and provide the companionate love that they both desire. He pays all their expenses. Upon the sale of her home she nets $250k. She also has IRA assets of $300k, which she is required to liquidate in small tranches each year at a rate of about $1,200/month. W receives SS of about $900/month. There is almost zero CP, given that neither has time, skill or efforts that might contribute to its creation per Family Code section 760. While all of W’s needs are met by H during their marriage, the parties are relatively frugal. Husband doesn't like to fly, or to take vacations.

They are married for almost 6 years. W shows symptoms of dementia in early 2016, and develops ambulatory problems. She begins to need outside caretakers, that H pays with W’s money, which he manages as her memory and Parkinson’s progress. She becomes more than H can handle on his own. I guess that is not unreasonable, except for the "except death do us part" stuff.

In 8/16, H tells W’s children he has had enough. He loves her and she was a good and loyal spouse, but W is too difficult to care for and he admits he is worried about spending down his assets, but based upon his $10k/month in income, including a large nontaxable component, and $4k/month in reported expenses. Yet, his SP estate continues to grow, and he will never exhaust his own resources before he passes. He tells W’s children that he intends to place W in a facility out of the area, because it is too painful to have her near, if they do not do so first. He expresses his view that the financial responsibility for caring for W, until her death, should be their's based upon their moral responsibility as her children. He agrees to pay the costs of moving her from their home (his SP) to a facility out of the area near where her son resides, but later he reneges. A facility is found for “mom” by her children, which costs $12k/month, including a special memory care unit she needs. At 13k/month (including living expenses beyond the facility charges), mom’s net worth will be exhausted in X number of months.

How would you rule? Obvious pro and con arguments are implicated. The question of perceived relative equity is always fraught, and this is no less true for a subject – alimony – the justifications for which remains a topic of considerable controversy.[31]


A. Temporary Spousal Support – The Launching Point

California has long recognized two types of spousal support and our judges and justices have applied slightly different standards and rules about how to determine each: "Temporary" or "pendente lite" spousal support and "permanent" or "judgment" spousal support. Temporary spousal support is determined one way, and judgment spousal support another. Temporary spousal support is essentially what a court may order until the community property has all been divided equally according to marital balance sheet, in the form of a Judgment at the end of the case. Once that occurs, we enter the zone of "judgment" spousal support. Dementia cases may be treated differently depending upon whether the issue is temporary or judgment spousal support. I will develop the judgment spousal support themes as this series evolves - for now I am mostly concerned with analyzing pendente lite support issues and arguments.

In 1982, when I was first licensed to practice law, there was no such thing as "Guideline" spousal support in its current form. Some California counties or particular courts had schedules that judges might rely on, in order to create uniformity of alimony awards depending upon the parties' relative incomes, but it was mostly the Wild West in terms of what support amounts might be ordered. Indeed, outcomes were highly dependent on judicial viewpoints and even bias for genders, and sometimes the status of the attorneys involved. As you might imagine, this created the potential for a lot of variability in terms of support awards, particularly from one jurisdiction to another (including the demographics of a given venue), but also from case to case and attorney to attorney. This encouraged litigation and the rolling of dice, because it was very difficult for lawyers (and especially youngster attorneys, as I was then) to reliably predict how a Court might rule - and so to settle the case more economically without having expensive hearings.

Predictability is imperative to the efficient and fair administration of justice, not only so that people are treated uniformly throughout the State, but in order for lawyers - as deal-makers - to know what to expect and how to set their client's expectations. And family law litigation was so much cheaper then than it has become today. Having an idea what amount in spousal (or child) support is likely to be ordered in any given case is critical to lowering risks for clients as well as their fees, at least for responsible and competent family law attorneys.

A detailed review of the evolution of "Guideline" support in California is beyond the current scope and aim of this article. As a general overview of the history of uniform child and spousal support standards throughout the State, the Agnos Child Support Standards Act of 1984 (the Agnos Act) was adopted by our legislature and became effective July 1, 1985. It was intended to standardize child support awards and to fix minimum amounts, according to a formula involving relative incomes and timeshares, that courts could not deviate from in setting child support, except under certain circumstances (as with a wealthier parent or parents). However, it did not create standards for spousal support. Various counties, however, did. These were not binding upon other counties, and were in effect advisory.

Effective in 1993, the Agnos rules transitioned into the guideline systems that we now have, beginning with Family Code section 4050 and relating to child support, as a result of pressure from the federal government for states to establish uniform mechanisms for child support awards. How child support awards are calculated today is addressed elsewhere on this Blog, but the essential premise is as stated in Family Code section 4052: "The court shall adhere to the statewide uniform guideline and may depart from the guideline only in the special circumstances set forth in this article." Programs have been developed to render sensible the formula for the actual determination for child support which is laid out in Family Code section 4055, like the Dissomaster and the Xspouse. Those programs have also, for many years, incorporated various California counties' schedules for recommended uniform spousal support orders as an option for judges to use in setting both child and spousal support (or one or the other) at the same time. The Santa Clara spousal support schedule is the most often used default formula for determining temporary spousal support awards. These guidelines, by the way, never apply to or determine "judgment" spousal support - i.e., the spousal support which may be ordered at the conclusion of a case pursuant to Family Code section 4320.

What has happened, over time, is that these spousal support guidelines have generally become the rule, rather than the exception, because of their efficiency and uniformity, and therefore their predictability, not the least reason for which is to make it easier and more efficient for judges to render spousal support decisions. And lawyers, like me, to predict outcomes and consequences and so advise my clients accordingly.

Unfortunately, particularly for people suffering the expense related ravages of dementia diseases, guideline spousal support analyses are not equipped to deal with catastrophic medical or special care living expenses when people divorce. Yet, I have noticed that many young attorneys, who have generally grown up with standardized temporary spousal support rules, don't realize that they are advisory and not "gospel." Guideline spousal support can be wholly inadequate to care for an Alzheimer's spouse, and you need to know this if you are going to represent a party in an Alzheimer's setting! Which is what motivated me to begin this series.



The starting point for a temporary support analysis is Family Code section 3600, which has essentially been the rule for decades (albeit it was previously part of the Civil Code before our current Family Code was enacted in 1992). It provides in pertinent part:

“During the pendency of any proceeding for dissolution of marriage or for legal separation of the parties …, the court may order (a) the husband or wife to pay any amount that is necessary for the support of the wife or husband, consistent with the requirements of subdivisions (i) and (m) of Section 4320 and Section 4325, …”

Section 3600 does not, contrary to some popular misunderstandings, expressly invite a 4320 analysis for temporary support purposes except as to the enumerated subsections. “Need” and “ability to pay” – boom, that is it. Pendente lite attorney fee applications are another matter. These are often the second half of the dementia spouse’s application, and these do generally require some evidence of the parties' marital circumstances.

It is axiomatic and oft-repeated that trial courts have broad discretion to determine the amount of temporary spousal support awards, considering both the supported spouse’s need for support and the supporting spouse’s ability to pay. Trial court rulings will not be reversed absent a clear showing of an abuse of discretion (or symptoms of the failure to exercise discretion at all). E.g., IRMO Dick (1993) 15 Cal.App.4th 144, at 165 citing IRMO Czapar (1991) 232 Cal.App.3d 1308, at 1316), and IRMO Blazer (2009) 176 Cal.App.4th 1438, at 1442. Neither Dick nor Blazer identified guidelines or local court schedules as bearing on determining need or ability to pay for temporary spousal support purposes. Both cases involved high net worth individuals and incomes beyond the scales seen in the day-to-day family court trenches, rendering rules of thumb less compelling.


B. A Review of the Early Appellate Response to a Guideline Spousal Support Revolution

An important case that supports your arguments that justify ignoring the convenience of relying upon schedules or punching “enter” in the Xspouse or Dissomaster programs on a computer is IRMO Burlini (1983) 143 Cal.App.3d 65, at 70.

IRMO Burlini involved an appeal from both a temporary and judgment spousal support award, following a 24 year marriage. It was issued one year after I was admitted to practice. At that time, prior to the popular advent of computers, the Santa Clara Superior Court employed “guidelines” to aid in imposing consistency in support awards, for the obvious purpose of easing judicial burdens and imposing a uniformity in support application outcomes. The case even makes authority reference to “Adams & Sevitch” publications, which not only makes this writer nostalgic but also makes me feel old. It is a key case that explicates the notion that temporary spousal support serves different public policy considerations than judgment spousal support, and so if often higher. It explained that:

“Spouses residing together have one family income whether one or both spouses are employed. They develop a standard of living based upon that income. Separation of the parties results in no change in that income, but their total expenses increase because of the additional expenses incurred by the party who leaves the family home. That person must incur new expenses, including those for shelter, utilities, and furnishings. Separation may also result in an increase of some expenses for the spouse remaining in the family residence. The temporary spousal support order is an attempt, pending trial, to allocate the family income equitably between the parties, considering their individual incomes and expenses….”

Burlini addressed a much more modest fact pattern than the relatively extreme circumstances presented by Dick and Blazer. The W appellant’s complaint appears to have been that the trial court gave her less money as ‘permanent’ spousal support than had been ordered under the ‘guideline’ for temporary support. Burlini makes clear that guidelines are one thing – and acceptable – in the pendente lite phase, but not so at the end of a case. As such, it approved a scheduled analysis for temporary support purposes. The decision states:

“Many California courts have adopted guidelines for temporary support. These are nothing more than a method of dividing the family income proportionately by adopting a schedule, in chart form, based upon either the net income of the person being asked to pay support or the net incomes of both parties. Guidelines for temporary spousal support generally include a statement such as that contained at page 15 of the Uniform Domestic Relations Local Rules for Bay Area Superior Courts that ‘This schedule shall not be used as a guideline for long-term spousal support at trial or thereafter.’”Id., at 70.

But the Burlini court went on to note, in a passage that is extremely important for spousal support dementia claimants at the temporary support stage, “Although the adoption of guidelines for temporary support is to be encouraged, it should be emphasized that they are only guidelines to be utilized in cases with no unusual facts or circumstances. If, for example, the tax consequences contemplated by the guidelines, e.g., temporary spousal support not to be taxable to the recipient, are incorrect, or a party is paying spousal or child support from a prior relationship, the guidelines should be applied as modified by such facts or circumstances. This would also be true where there are … exceptional medical or dental expenses, or other special needs of a spouse…. Indeed, the facts or circumstances of a particular case might well be so unusual that a court's guidelines for temporary support would be totally inapplicable.” [Italics added].Id.

Burlini was approved in IRMO Winter (1992) 7 Cal.App.4th 1926, specifically at to Burlini language about "unusual facts and circumstances," which the Winters court found did not exist in its case. The husband, a doctor, evidently urged under Burlini that spousal support should be lower than guideline under the special circumstances of his marriage because the parties were exceptionally frugal and saved their money for investments. In upholding a Sonoma County guideline schedule award, the justices stated "The 'status quo' in this case, where the parties lived very modestly in comparison to their means, including substantial funds for savings and investment. Husband concedes that if this were a case where the parties had 'enjoyed an expensive lifestyle ... the Court could find that a just allowance would be one sufficient to enable the wife to continue enjoyment of luxuries which had become "necessities.".... [W]e fail to see why Wife should be deprived of her accustomed life-style just because it involved the purchase of stocks and bonds rather than fur coats." Id. at 1932-1933.

The problem with dementia-type cases particularly in the temporary support phase of a case, where the break-up occurs before or shortly after significant expenses begin to be incurred for a recently diagnosed spouse needing greater and more expensive health care services, is that they may defy the conventional reasoning of temporary suppose formulas generally, which often look to "accustomed life-style" status quos that need to be maintained, as with IRMO Winter. Cases have held that temporary spousal support is "usually higher than permanent support because it is intended to maintain the status quo prior to the divorce." Marriage of Schulze (1997) 60 Cal.App.4th 519, 522 [emphasis in original]; Marriage of Blazer (2009) 176 Cal.App.4th 1438, 1442 (citing Schulze). But that status quo may certainly be less than an above-guideline award. This is where a temporary support payor needs to look for defensive arguments to counter the requests of a spouse who has recently been bumped into a greater health care cost situation.

It is not uncommon that elder marriages involve people who remarry late in life, and their marriages may therefore be relatively short. The rules for younger folks in short marriages are not terribly charitable towards a support recipient spouse, even if they suffer from medical issues. In Marriage of Hebbring (1989) 207 Cal.App.3d 1260, involving a very short marriage of 26 months with two spouses whose ages weren't set forth in the opinion but who were clearly not elders, the justices ruled "We hold that under the facts of this case -- a marriage of short duration where the spouse seeking retention of jurisdiction is in good health and enjoys permanent employment providing income adequate for self-support -- it is reversible error to retain open-ended jurisdiction over spousal support. This holding meets the objective of the legislative policy behind the Family Law Act that, where appropriate, the obligations of former spouses are ended so that they can proceed to develop their future lives." Id., at 1266-1267.

In elder dementia type cases we have almost no reported cases to guide us, although there are cases where a spouse was completely disabled from some other medical condition. We have medium age spouses, as with Marriage of Wilson (1988) 247 Cal.Rptr. 522, involving a husband who was 46 years old and a wife who was 48, with the wife having suffered in a fall that caused injuries that her doctor claimed required brain surgery. The parties were married before separation for some 70 months. The wife was evidently seeking lifetime support based upon her medical situation, which the appellate court assumed would make it impossible for her to ever become self-supporting, and she did receive spousal support for 58 months before further support was terminated by the trial court. The Wilson court noted the trial court had "recognized both the grievous and permanent nature of Elma's disability. [Nonetheless] It was beyond the court's power to render her self-supporting." Id., at 919. The justices concluded "While no one will dispute Elma's tragic disability, the clear trend is for trial courts to consider the totality of circumstances as required by section 4801. Self-support and length of marriage are each but one of eight important factors. (See In re Marriage of Prietsch & Calhoun, supra, 190 Cal.App.3d at p. 663). Each must be balanced in light of the others. This rule applies even where a permanently disabled spouse may be denied support after a short marriage. ¶Once the trial court logically and reasonably applies section 4801, all that remains for the appellate court is a review for potential abuse of discretion. Because the trial court carefully weighed all eight factors, the decision to terminate support including medical coverage was not an abuse of discretion given the totality of circumstances."

In doing so they relied on another case that involved a 64 year old support recipient: "Although we are unable to find a California case with facts like these, In re Marriage of Bukaty (1986) 180 Cal.App.3d 143 comes close. There an unemployable 64-year-old wife sought support after a 19-month marriage. She relied heavily upon her prior marriage to the same husband and lengthy cohabitation with him. After weighing all the section 4801, subdivision (a) factors the trial court ordered three years of support at $400 per month. On review the appellate court explained the Morrison proscription on support termination concerned lengthy marriages and did not apply to all marriages regardless of length."

End of part 1, for the moment. Please come back!




[1] Kabir, Ecstatic Poems, Versions by Robert Bly

[15] The defining characteristic of a durable (i.e., ‘springing’) power of attorney is that the attorney in fact continues in their role as attorney in fact even after incapacity. This is a scary concept, and can easily be abused. Conflicts of interest easily arise between children or other caretakers of dementia victims, who themselves are under the most extreme stressors a resulting entitlement justification that people commonly rationalize. A person who has been named as an attorney in fact under a GAL, is presumed to be a proper person to be appointed as a GAL absent a clear conflict of interest. IRMO Caballero (1994) 27 Cal.App.4th 1142, at ___. Note that no GAL appointment form has been supplied by the Judicial Council in non-custody related family law cases.

[31] See e.g., the excellent article by AAML Fellow Marshall S. Willick, http://www.aaml.org/sites/default/files/MAT105_7.pdf

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