How is TEMPORARY SPOUSAL SUPPORT Determined in California?

Q. How is temporary spousal support calculated in California?

Temporary "Pendente Lite" Spousal Support Awards in CA Divorce

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 'judgment' or long-term support. I address permanent spousal support separately. Know that judgment spousal support is rarely truly 'permanent', except in very lengthy marriages.

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 "partner" support and the price of equality in recognizing same-sex marriages and domestic partnerships includes being subject to the same rules concerning support that have long been assumed to be due for opposite gendered couples. I have found with some gay partners that this comes as a real shock.

Temporary Guideline Spousal Support Programs

Temporary spousal support generally has nothing to do with the length of the marriage (except possibly with extremely short periods between the date of marriage and physical separation). 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. The greater the difference, the higher the support.

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 almost universally use one of two computer programs that generate these numbers: Either the Dissomaster or Xspouse. The Indio courts use the 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 much at the temporary phase are most personal expenses (like credit card bills, rent and other costs of living). 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. Mortgage payments are relevant to the extent of tax write-offs that increase net after tax cash flow. The support programs render a number that tells the Court how much the higher earning spouse must pay for purposes of the court order. Most judges will not deviate from that amount. Expenses that judges ignore for support purposes, and the parties' marital standard of living, can be highly relevant to requests for attorney fees that commonly accompany support applications, however. If you are opposing a support and attorney fee request, be sure to point out what is left for you to pay your own living expenses - especially if a fee order is also issued. Depending upon all the facts, you might gain some sympathy leverage.

What is the Effective Date for Support Commencement?

Since the court determines the support obligation some weeks after a request for support is made (by way of filing a 'Request for Order), family law bench officers usually make 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. Get your application filed before the next 1st or 15th.

If applicable, be sure to ask the court to credit the payor spouse voluntary support payments made to, or for the direct benefit of, the other party made since the support request was filed - if this claim for set-off is disputed, specifically ask the court to reserve jurisdiction to time of trial so that your right to a credit or reimbursement gets decided later, or it may be lost or waived.

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. While the support amounts are uniform and predictable once the income numbers are determined and inputted, there is huge court discretion and variability in fixing the income numbers themselves. You can really hurt yourself financially if you don't understand the twists and turns.

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 their 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. You may cheat the government, or have otherwise righteous deductions, but discover that your local family court judge views it differently.

Imputed Income Issues

Another support battleground involves imputed income. What if one party refuses to work, or insists on working at a lower paying job than what they might attain? 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 because no (suitable) jobs are available? Imputing income cuts both ways, and can be an extremely sophisticated legal and evidentiary question. You will be sorely challenged to represent yourself. Likewise, commission and bonus income present their own unique problems. Another day, a few more Blogs! Check our on-board search engine for later dated tips, as these are topics I will cover.

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

Finally, if you are voluntarily supporting your spouse following a separation, you MUST obtain a court order (or court filed stipulation) for support if you hope to deduct what you have paid on your separate income tax return! But, if you and your spouse agree to file jointly because this is, on balance, more tax favorable to you then know that you cannot claim the support you paid as tax deductible in that return. I have met so many payor spouses who went for years following physical separation without thinking to themselves affirmatively seek a court to render a support order. It is probably obvious that there needs to be an underlying disso or legal separation pending. If your marriage or RDP is over but you hunker down in ambivalent limbo, you will harm yourself in terms of money and future financial security.

Conversely, if you are receiving voluntary support from a separated spouse, in some situations you may net far more money if you let that limbo grind on forever - but there may be countervailing factors as to other aspects of your case that outweigh such potential benefits. The bottom line is that you are likely being quite foolish by failing to at least buy an hour of an experienced family lawyer's time, and I am regularly amazed by how casually many people behave in this regard. Denial may be a river in Egypt, but it can drown you nonetheless!

PLEASE NOTE!: Under the 2018 Tax Cuts and Jobs Act, or TCJA, spousal support that is agreed to or ordered on or after January 1, 2019, is no longer deductible to the payor or taxable to the payee, under federal law. The old rules have not changed for purposes of California taxation. The guideline programs mentioned above are being updated to reflect this fact for support orders originating after January 1. However, the old guideline formulas will continue to apply to support instruments, and court orders, entered into or issued prior to December 31, 2018.

Author: Thurman W. Arnold III