I have seen it in mediation a hundred times before: the slumped shoulders, the downcast, exhausted eyes, the furrowed brow, like a patient just told he has 3 months to live. These are the signs of DissoMaster shock, an affliction most often seen in men and women, advanced in their careers, who have supported their homemaker spouses, and who have just seen their first support calculation.
If you are already paying a hefty mortgage, shouldering household bills and struggling with an ever-mounting food bill, you may find that a court order compelling you to pay more than half your after-tax income to your ex as child- and spousal support (alimony) is unfair.
As a divorce attorney and mediator, practicing before the San Diego Superior Court in Vista, CA, I’m going to share some ideas that could save you much money and time. It’s important to go into your mediation or your attorney’s office with some idea of how the courts approach calculating spousal support (California’s legal term for “alimony”). And, if you’re self-represented and doing your own motions, you’ll want to know how to argue for either a higher or lower spousal support award, and what facts to put in your declaration.
First, it’s important to understand that a temporary spousal support award, known as a “pendente lite” award, has a different purpose from a final award. The purpose of a temporary award is to preserve the way things are now until the trial date and judgment. Accordingly, the court is allowed to consider temporary spousal support guidelines. San Diego doesn’t have temporary Guidelines, but its judges often use Santa Clara County’s guildelines. These guidelines will result in a different, and usually higher, spousal support award than the court will ultimately give you after trial.
By contrast, the permanent award is based on a series of 17 factors set forth in Family Code section 4320. Our California legislators designed these factors to support its policies regarding spousal support which are, in a nutshell:
1. To provide the supported spouse with the standard of living enjoyed during the marriage;
2. The duty of the supported spouse to take reasonable actions to become self-supporting within a reasonable period of time;
3. The supporting spouse’s ability to pay, balanced against the supported spouse’s need for support;
4. “Need” is calculated based on factors impacting a spouse’s ability to earn, such as education, health, work experience and career deferral to support the supported spouse, make his (or her) home and raise his (or her) kids or get his (or her) education or vocational training.
5. Spousal support should not be paid to a person who has tried to murder or has committed domestic violence against the supporting spouse.
You may ask, how do I approach this rather daunting list of factors? Fortunately, San Diego has developed an excellent worksheet, and I advise even my Riverside, Hemet, Temecula and Murrieta clients to download San Diego’s Spousal Support worksheet. Fill this out for both you and your spouse, and you’ll get a handle on how to argue for a higher or lower award, and what facts to allege in your declaration. In San Diego, you can even attach this form to your application for orders.
UPDATE: For reasons that I do not understand, the San Diego Superior Court has repealed its worksheet for calculating spousal support, entitled “Spousal Support Factors Worksheet.” Therefore, if you have an old copy, don’t use that worksheet as an attachment to your Requests for Orders. Instead, go to Family Code section 4320 and review the factors. Make sure you address any pertinent factors in your declaration attached to your Request for Order.
Hoping this helps you nail jello to the wall (my term explaing how spousal support is calculated), I remain …
Very truly yours,
Thomas D. Ferreira, Esq.
Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.