Q. I am in the process of settling my divorce with my ex-husband. Our only dispute is a fair amount of spousal support that I will receive. His attorney mentioned something he called the "B-Bump" as a way to come to an agreement. What is it, and how does the B-Bump work?
A. I have written extensively about various aspects of temporary and judgment (often erroneously referred to as "permanent") spousal support, and how it is calculated at different stages of the proceedings. If this issue is important to you, please try the search engine at the upper right of each page, or go to the Blog Categories on my Enlightened Divorce™ Home Page, at left.
For purposes of your question, the short answer begins here: Temporary spousal support describes support that a party may be entitled to receive during the phase of the proceedings that begins with the filing of the Petition for dissolution, or legal separation, and which concludes with entry of a Judgment. Temporary spousal support in California is pretty much universally fixed in the same manner as child support is - using one of the family law computer software programs like the Xspouse or Dissomaster. These legal programs themselves simply crunch the algorithms that are set out in Family Code section 4055. If you look at that statute, you will see that you must be a mathematician to otherwise figure it out. Temporary spousal support is an income-driven analysis - generally your (or his) expenses are irrelevant at this stage. The programs "tax-effect" the numbers, so that the beginning point is always gross, pre-tax income.
Judgment spousal support, somewhat obviously, is any alimony that a party may receive from and after entry of that Judgment. It cannot be determined using the support software programs. Instead, in contested cases that result in a family court trial, the judge is required to determine support amounts based upon an evaluation of each of the factors set forth in Family Code section 4320. It is reversible error for the court to fail to make these findings, especially if requested to do so. This means that while temporary support awards can be reliably predicted once the final numbers that get inputted are determined, it is impossible to specifically predict judgment spousal support outcomes since each case turns on its own facts and unique application of the "4320 factors".
However, the reality is that only a very small fraction of judgment spousal support cases actually to go trial. The overwhelming majority settle - as they should!
Still, a fair settlement can be challenging because the judgment spousal support never gets fixed by a court if the parties sign a Marital Settlement Agreement or Stipulated Judgment. This leaves it to the parties to do so. Most commonly once a support number is agreed upon, they or their attorneys do not evaluate or list what the court would or should of found had it been asked to make 4320 findings. Hence, most settlement agreements leave that out entirely - a very bad practice because a court that is later asked to modify or terminate a judgment spousal support award will have no guidance in the settlement document as to what those factors were or should have been. In settlement agreements prepared by my office, particularly with long-term marriages in excess of ten years, we almost always list our own findings as to each subsection of 4320 that apply to the parties' circumstances. That way, if our client later is seeking to modify, or defend a modification, of their alimony award there is a baseline to measure changes that have occurred since Judgment was entered against.
The Xspouse and the Dissomaster offer another option for resolving and fixing the amount of judgment spousal support. It is called the "B-Bump". The B-Bump is accessed by running a temporary spousal support number in the program (combined with child support numbers if there are minor kids), and then pressing the "control" key and the letter "B". This results in an automatic reduction as to the temporary spousal support number by a floating fixed percentage. This makes some sense on the assumption that in the average case, where there are no special facts like a history of illness or domestic violence (others apply too), judgment spousal support is a smaller number than is temporary spousal support. This is because each satisfies different public policy concerns, and assumes a party may have a greater need for spousal support at the early phases of a divorce where one household is splitting into two. By the time the judgment is entered, it is assumed things have calmed down and people have become accustomed to their new budgetary realities.
I say the fixed percentage is floating because no specific percentage amounts applies equally to every combination of income scenario for each of the two parties. It some situations the amount of judgment spousal support may be reduced by 12 to 15% of the temporary figure, while in others the reduction is much greater and approximates 31% or more. The inclusion of a temporary child support obligation (where both CS and SS are being calculated) will alter or skew the numbers. The numbers change together with the tax-effects of deductible spousal support, but they seek to give some idea of what both parties' net spendable income will be after the calculation is performed.
Accordingly, the reality is that using the B-Bump key function is the equivalent of pulling numbers out of thin air, and the math behind it will not be understandable to anyone on any kind of objective basis. It is like using a magic wand to transmute temporary spousal support figures into judgment support numbers. Still, for settlement purposes it can have some usefulness in a number of respects:
- Many people are exhausted and just want to be told what their obligations are and so get on with their lives
- Possibly they're familiar with its application from an initial support hearing, and for the payor spouse any lesser monthly sum sounds like a welcome improvement
- Spousal support trials are extremely costly and can tend to generate further resentments
- The program presents net spendable income numbers that the parties can consider in light of their budgets, and after all settlements can and should be based upon the parties' respective needs and abilities to pay
- The B-Bump allows each side to look at numbers that are "objective" in the sense that neither of them created them
- They fall where they fall, not quite in the way that dice do but the same for all similarly situated people who are treated, well - "uniformly"
- In mediation support numbers are often arrived at through a process that looks to the totality of each spouse's circumstances, in order to meet the needs of each as best as can be accomplished. Of course, one of the benefits of mediation is that numbers aren't imposed upon you by a third party (person or machine), but instead result from a balanced dialogue based upon felt concerns. The net spendable numbers may facilitate this dialogue
- Some divorcing couples can have that discussion, others just need a number.
If you need to pull a rabbit out of your hat so that your case can be inexpensively finalized, the B-Bump is one way to do it that at least doesn't leave either side feeling that they caved into the demands of the other. In many ways, having a family court judge fix your judgment spousal support number following a trial on the 4230 factors is every bit as much a mystery and a risk. Some people may prefer a machine telling them what to pay and accept rather than a judicial officer - and the money that using the B-Bump will save (not to mention the acrimony) makes it a viable option in appropriate cases.
I have seen parties to prenuptial agreements agree that the B-Bump will be used to determine spousal support just so they have the certainty of knowing how it will be fixed in advance, in an effort to save legal fees in the event of a subsequent break-up. Whether a court can enforce such a provision remains an open question given that it would otherwise be reversible error for the Court to base judgment suppport on guideline support (especially if in light of the circumstances existing at date of enforcement such a result would be "unconscionable"), but I don't see why the parties can't set up such formulas for resolving disputes if they really mean to, and are fully informed.
Finally, if you do settle the case per the B-Bump, this doesn't obviate the need to address the Section 4320 factors in your settlement agreement, assuming that spousal support is subject to modification in the future by agreement or court order as opposed to nonmodifiable support provisions.
I suspect many family law specialists would vigorously argue with me on this, for good reason - I hope if the idea of relying on the B-Bump disturbs you, that you might weigh in with some comments!
Who knows? Maybe one day we will see family court robot judges pronouncing judgments that, at least, are devoid of emotions!
Thurman W. Arnold III