ANALYTICAL APPLICATION OF THE STATUTORY SCHEME FOR DETERMINATION OF POST DISSOLUTION SPOUSAL SUPPORT

Application of FC 4320 a, c, d, e, k,

This is the work of James Cox. http://www.privatejudge.org/divorce.php

The rationale for post-judgment spousal support reflects the different purpose it serves from that of temporary spousal support. The latter is a short terms means of assuring economic viability of two marital units by dividing cash flows during marital breakup, whereas post-judgment support is a long term division of the benefits and burdens of the marital efforts to achieve the marital expectations.

The dominant guide in post-judgment spousal support is Family Code (FC) Section 4320.   It sets out a mandatory schema of 14 factors (including ‘any other factor’) that the court must apply to determine post-judgment support. The application of these factors has been interpreted and fleshed out by decisions, as has the way in which the court exercises its discretion in determining the amount and duration of support.   While written decisions provide guidance, they do not set forth clear-cut quantitative standards.

Further, the realm of spousal support determinations often confronts the old saw ‘bad facts make bad law,’ resulting in a number of exceptions or confounding fact patterns that must be sought out and addressed before one can move on to the more normal situation. I think there are case law exceptions or modifications of the more normal regimen for the following atypical fact patterns:

• Depressed incomes (lifestyles) for career advancement (school) during marriage.
• Effort during marriage, including overwork, for early retirement or to get ahead.
• Disability of spouse. When does the obligation for support pass from a former spouse back to society in general? (Wilson) [Duration possibilities: up to about 15 years of marriage, support lasts as long as the marriage. After 15 years, likely forever. This is a reflection of the reasonable expectations of the parties: the longer married, the longer the partner’s support is expected to last.] [Amount possibilities: Calculate economic resources of each parties (cash flows as well as balance sheet, including marital standard metrics) and then look to unique, direct costs of the disability, measured either by actual out-of-pockets or by comparable care costs, such as costs associated with skilled nursing or convalescent care. These are perhaps viewed as community obligation (paid by each party’s resources) in proportion or pro-rata.]
• Development, or lack thereof, of employment related skill sets.
• Opportunity to develop desired/desirable career for dependent spouse [the longer the marriage, the greater the obligation to provide retraining and education for career, not just job.]
• Offset for comparative residences comparable to Marital Residence (discounted for living apart.)
• Non-cash savings (stock/options or defined benefit pension acquisition) that do not show on tax returns (defined contribution pension deferral will show on income tax returns) – wealth – asset base.
• Inflation over time for standard of living – c.f. cost of housing in valley in last two years.
• Geographical COLA for standard of living – the same number of dollars in Kansas go a lot further than in Cupertino.
• Duration of support: length of marriage; coverture, natural phase points (social security, career progression, majority of kids), age of parties, Gavron notice and compliance with legal obligations under FC § 4330, plan or prior agreement of parties.

While recognizing these kinds of confounding fact patterns, the statutory material does little to assist the court in translating guiding principles into dollars and cents orders. In fact, the guidance expressed in no less than four places in the spousal support chapters–namely, that the support paid and received should be measured by the “marital standard of living”–actually generates more confusion than relief, especially when coupled with the appellate guidance given in soft, non-quantified expressions such as ‘high or moderate standard of living’ etc.

Thus the first step of analysis is to test for unusual and fact dependent situations, such as disability, extreme familial support, or atypical career development. Even after culling out the less-frequent or more difficult questions, post-judgment support is like most discretionary areas: the logical plan allows the courts discretion not to squeeze all pegs into a single hole.

But in many of the cases that I have seen, the factual pattern of the marriage falls within a handful of familiar patterns. Given this situation, it is possible to develop a method to quantify the Marital Standard of Living, consistent with the case guidance, so that practitioners and parties can develop common expectations, which are highly promotive of settlement. In fact, one reason the proposed solutions are so effective is that they are a logical expression of the underlying, shared beliefs of the parties.

The process of turning ideas about support into numbers is merely an effectuation of the statutory scheme. Clearly, a formula that takes inputs and spits out proposed numbers has been

categorically rejected by the Courts, in favor of the mandated balancing of factors in the Family Code. But once the exceptional situations are sorted out, the more common patterns can be approached in a uniform manner to achieve consistency and clarity in result.

Logically, the first step is to ascertain the ‘Marital Standard of Living’ (MSL). Though described in case law by jurists who employ non-quantified, social science language, the MSL cannot be ordered in these terms (“Pay the amount necessary to have a medium to high standard of living!”).   Instead, both for clarity and for enforcement purposes, the Trial Court is required to convert the social science terminology of case law into actual dollar amounts, a process which could easily be even more subject to interpretive bias based on the background of the judge, and concomitantly less predictable and less tailored to the case before the Court.

Under case guidance, it is clear that MSL is measured by the expenditures of the parties during the marriage (including funds ‘expended’ for savings). However, it is almost impossible to know exactly what was spent, both because of the likely dearth of accurate data, and because of the cost-prohibitive nature of having expert accountant or economist reconstruction of marital expenditures. Thus, the parties are limited, providing the Court with only summary information or testimony upon which to find the MSL.

But it is possible to both estimate and interpolate significant economic conclusions from readily available sources. In the almost 13,000 settlement conferences I have conducted, it is clear that expenditures are normally closely correlated with reported taxable incomes [less closely with small businesses, but that can be corrected.] Further, use of incomes as an indicator of marital expenditures is permitted in the case law.

But incomes are not the final data in this analysis, as a substantial number of families have many other non-tax return cash flows that can affect MSL. The most common significant metrics of expenditures, after taxable incomes, are items such as familial support from parents; non-cash employment benefits (e.g., option grants, ESPP opportunities, vehicles and pension fund contributions); repeated refinancing and borrowing against growing equity in the marital residence; and even increasing marital consumer debt.   The logic of according economic value to non-spendable benefit additions (such as growing retirement accounts) is that such third-party savings reduce the necessity of familial savings for retirement, thus freeing up further funds for spending.

Thus, tax-reported incomes adjusted for non-tax return items give a fair impression of expenditures for the family.   Given this measuring stick, the next question is: which years should be measured? Local rules indicate the last year prior to the date of separation (DoS), but such a short period is probably just as inaccurate as the entire period of marriage.   Both common knowledge and economic fact show that the MSL typically increases with experience and increasing earnings of the family unit, for most families tend to spend (including savings) what they earn. So while any number of years could be used, too many years would tend to dilute the rising tide that creates the parties’ expectations at the end of the marriage, while too

few years might suffer from all the inaccuracies of a snap-shot view of any particular segment of a life. It has been my experience that the last three to five years of economic data are usually enough to capture the MSL flavor of the marriage, without myopically seeing too little information to reach an opinion on normal or representative expenditures. And by using variable weightings of the years, one can easily imbue the results with determined flavors.

Even in this ‘normal’ pattern, there are several potential confounding factors, including variable earnings, cost of living inflation, and even a family’s ability to adjust to sudden changes in funding. Because of this normal volatility, I mechanically reduce Adjusted Marital Family Incomes by subtracting (or adding) 25% of any annual variation from the average that exceeds 10% difference.   This simply ‘smoothes’ or dampens the picture of MSL provided by the data by knocking off the peaks and valleys of variable cash flows, while still maintaining the essence of the MSL reflected in the numbers.

Once the Smoothed and Adjusted Marital Family Income is determined for the family, the numbers need to be parsed so as to reflect major household allocations:   was the money spent for the purposes of the children, or for purposes of the adults? Given that our state guideline child support calculations are based in part on three USDA studies of family economics, I simply extract the approximate child support percentages from the statute and use these as a basis for allocating a portion of the Smoothed Adjusted Marital Family Income to the children,. The remaining amount now constitutes the adult portion.   This amount is for two, so it is divided in half to determine the amount allocable to each party during the marriage. Note that the cost of children is not artificially terminated at majority, but should be considered so long as the parents are contributing to education or support for their children, whatever their ages or circumstances might be, including school, religious pilgrimages, or simple economic necessity.

The next two steps are logical, though not common. The first is to adjust for inflation over time by using the CPI, especially if the date of judgment is more than two years post separation. The second is to adhere to the common sense understanding, supported by the SF Federal Reserve, that “two can live more cheaply than one” and accordingly, add back an inflator to reflect the additional cost on the MSL when each party spends money alone instead of together. Note, however, that if the recipient has kids living in the household, the inflator loses its strength until they depart.

Using all these adjustments, I can calculate a number that reflects the MSL in today’s dollars. But the recipient spouse is not free to just sit back and receive this amount with no obligations. Instead, the legislature has levied, in FC §4330, an independent, though discretionary, obligation on recipient spouses to ‘strive to be self supporting at the MSL’. Thus, they must do what they can to maximize (eventually) their own contribution to MSL, which could include reasonable return on assets (wealth) [Cheriton and Terry], or other sources of support such as rent, pension payments, disability income, social security, or annuities. So given Recipient’s independent obligation, Payor spouse is obligated only to make up any shortfall in the earnings of the Recipient up to the level of the MSL. So while not absolute, the MSL becomes a de facto

‘cap’ or limit on the amount the Payor can expect to pay, absent unusual or intervening facts. [N.B. thus, every additional dollar Recipient earns is a dollar reduction in support up to the MSL, which, once achieved, constitutes zero payment.] And while there is clear permission to go above the MSL, the general rule is that if the Payor obtains or develops extensive wealth or income post separation, the Recipient will not share in such new money once they are at the MSL.

Often times the cost of maintaining two households exceeds the limited dollars available.   In this case, Payor’s contribution to Recipient would drive Payor below the MSL, which is contrary to the intent expressed in the statutory scheme that both parties should be maintained at the MSL. Equitably, when both parties find themselves below the MSL, I believe there is no guidance that sets out any unequal allocation. So, to obtain parity below the MSL, simply add together the parties’ incomes and divide by two.

Current legal strictures:

• MSL, while important, is not the only factor, nor is it overly precise: IRMO Smith (1990) 225 Cal.App.2d 469, 274 Cal.Rptr. 91. At issue is whether prior order met reasonable needs.
• No formulaic computation of post judgment support.
  • No DissoMaster: IRMO Schulze (1997) 60 Cal App. 4^th 519, 70 Cal. Rptr. 2^nd 488
  • Not based on DissoMaster: IRMO Burlini, (1983) 143 Cal.App 3d 65, 191Cal.Rptr. 541
• Usually less than temporary.
• Measure by expenditures usually, but incomes are ok: IRMO Weinstein (1992) 4 Cal.App. 4^th 555, 5 Cal Rptr. 2^nd 558
• Include borrowing in expenditures, but one is not required to borrow in excess to pay: IRMO Smith, IRMO Weinstein
• Include savings, actual vs. potential: IRMO Kennedy (1987) 193 Cal.App.3d 1633, 239 Cal.Rptr. 151; IRMO Winter (1992) 7 Cal.App.4^th 1926, 10 Acl.Rptr.2d 225
• MSL becomes less important further from DoS: IRMO Rising (1999) 76 Cal. App. 4^th 472, 90 Cal.Rptr. 2d 380
• Exclude equity in marital home or replacement: IRMO Kennedy, supra
• Consider allocation of resources and debts: IRMO Duke; IRMO Norton
• Consider reasonable return on assets: Terry; IRMO McElwee (1988) 197 Cal.App.3d 902, 243 Cal. Rptr. 179
• If paying puts one below MSL, ok for recipient also to be below MSL: IRMO Epstein (1979) 24 Cal.3^rd 76, 154 Cal.Rptr.413. But permanent SS should not leave one below MLS while other is in disparately better position: IRMO Ramer (1986) 187 Cal.App.3d 263, 231 Cal. Rptr. 647
• Recipient can be charged with income from all sources: IRMO Clark (1978) 80 Cal App.3^rd 417, 145 Cal.Prpt. 602
• MSL is not the absolute cap when increasing income is the result of marital effort: IRMO Ostler and Smith (1990) 233 Cal. App. 3d 33, 272 Cal. Rptr. 560; cf Hoffmeister II, (1987) 191 Cal.App.3d 351; 236 Cal.Rptr. 543
• Artificially suppressed income during marriage is not the basis for limiting MSL: IRMO Watt (1989) 214 Cal.App. 3d 340, 262 Cal.Rptr. 783

PARAPHRASING THE METHOD USED TO QUANTIFY MSL

Family Gross Income:

To determine the Marital Standard of Living, use Gross Combined Income during the final portion of marriage, smoothed by eliminating peaks and valleys, graded over time to weight the likelihood of the community becoming adapted to that income (sudden rise at the end of the marital period receives lower weight), to obtain a gross (pre-tax) Family Standard of Living (FSL). Case law indicates that the better measure of FSL is expenditures during the marriage, but absent unusual circumstances (drawing down home equity by financing, continuous gifts or consumption of inheritances, increasing and substantial consumer debt), incomes should provide a close approximation of funds available to be spent on the standard of living.

Adult Gross Income:

Reduce that by a proportion of the gross allocated to the kids, depending on the style and expenditures of the parents. Roughly, 1 kid = 19%, 2 = 30%, 3 = 38%, 4 = 43%, 5 = 47% allocated to kids, so reduce accordingly the amount available to the adults for their expenditures.

Single Monthly Amount:

Then divide in half to arrive at individual amount, and divide the resulting annual amounts by 12 for monthly gross pretax standard of living for each adult.

Living Separate Inflator:

Add back a premium (20 – 40%) for the loss of cost savings attributable to living together: (e.g., now you need money to heat two houses; no multi car discount on auto insurance; two separate cable subscriptions; two set of sheets, two set of china) [per research from SF Fed Reserve Bank, 2000.]   [cf. The multiplying effect of this inflator is decreased for a parent with kids living at home and receiving child support.]

Cost of Living Inflator:

If the Date of Separation is more than two years ago, the prior year’s dollars need to be brought into today’s dollar values by applying a cost of living adjustment.   This is further exacerbated by the recent sharp increase in housing costs in Santa Clara County, as a reflection of the costs of homes and a resulting increase in rental costs.

Self-Sufficiency:

Deduct grossed-up (pre-tax) amounts received [add back the ratable tax rate on non-taxed payments or imputations to insure comparability with the standard measured in pre-tax dollars] which includes earnings, active investment, attributable income, value of benefits received, and passive income [rental value of paid for home; deferred income contributions, rents, investment returns including cap gains], and earned income. Earning ability applies here: FC 4320 a(1), a(2), g, and 4322 (Terry)

Both Parties Below MSL:

Both parties are entitled to the gross standard MSL. If Payor is above, Payor needs to raise Recipient up to standard, unless it reduces Payor below standard. If Payor goes below MSL, both should be equal as there is no justification to discriminate. So long as Recipient is up to standard from all combined sources, it is immaterial how much more Payor makes.

N.B. This analysis for determining ‘permanent’ spousal support under the statutory scheme should result in both adult members of the community equal to each other or above the Marital Standard of Living, as measured by pre-tax gross incomes. Given this result, pursuant to F.C. 4058, both parties will need to reflect the different economic reality after receipt and payment of support. I suggest that the DissoMaster spousal support calculation be disabled (to prevent confusion), that the Payor enter the amount paid on the “SS paid previous marriage” line of the DissoMaster, and that the Recipient reflect the payment as “Other taxable income”. This methodology will usually result in substantially different guideline child support.

Short Hand Calculation:

• Gross combined marital incomes
• Smoothed for income
• Allocate for kids
• Add back 20-40%
• Divide by 2; calculate monthly standard
• Figure out Recipient’s contribution to standard
• Remainder is Payor’s contribution to the attainment of the marital standard of living, post dissolution.

Vocational evaluation usually makes it possible to project the amount of time Recipient needs to accomplish the goal of FC 4330, which is self-sufficiency at the marital standard.

Duration of Spousal Support:

In considering the duration of Spousal Support, there is both statutory and logical support, absent unusual facts as discussed above, for the notion that the duration of support should be proportional to the length of the marriage.

Thus, in a short term marriage of 1 to 4 years, the expectation is that spousal support will also be short term. In fact, in such a short term marriage, there is no reason that spousal support should be more than rehabilitative in nature, allowing the lower earning partner a short period of time to get back on his/her feet and become self-supporting.

For a marriage in the range of 4-10 years, and without specific atypical factual circumstances such as pregnancy and child rearing responsibilities, the presumptive duration of support from FC 4320 is equal to about ½ the length of the marriage.

For marriages that have lasted longer than ten years, and thereby have strongly supported the expectations of the parties to be able to rely on the support of the community, the duration of spousal support as a multiple of the length of the marriage should also expand, just as it contracts for marriages below 10 years duration. If a twenty year marriage should look to support payable for approximately a year for each year of the marriage (a duration of 20 years) or a multiple of 1.0, and a 10 year marriage would presumptively be one half the length of the marriage – a multiple of .50, then a straight-line increase in the duration of support of 5% per year from 50% at 10 years to 100% at 20 years is logically consistent.

After considering these calculations, the appropriate tailoring would be then to fold those durations around the natural phase points in the couple’s future, such as emancipation of the kids, job/career milestones, date of social security availability, expected physical retirement, etc.

We have put this into a google sheet Alimon / Marital Standard Of Living online calculator.

 Marital Standard of Living (MSOL):  Practical Application, Scenarios & Variations 

The following article comes from JS Held University and has helped me to understand a ton.

Introduction 

This article focuses on the income approach to determining the marital standard of living (MSOL), with particular emphasis on Marriage of Cheriton (2001) 92 Cal.App.4th 269 and Marriage of Ackerman (2006) 146 Cal.App.4th 191. 

As a preface for this article, I want to highlight some language pertaining to MSOL from California family law cases and the Family Code as follows: 

• FC, § 4330, subd. (a) – “In a judgment of dissolution of marriage or legal separation  of the parties, the court may order a party to pay for the support of the other party an amount, for a period of time, that the court determines is just and reasonable, based on the standard of living established during the marriage… ” [emphasis added here and hereafter] 

• Marriage of Nelson (2006) 139 Cal.App.4th 1546 – “Section 4330 does not make ‘marital standard of living’ the absolute measure of reasonable need. ‘Marital standard of living’ is merely a threshold or reference point against which all of the statutory factors may be weighed. It is neither a floor nor a ceiling for a spousal support award. The Legislature intended ‘marital standard of living’ to be a general description of the station in life that the parties had achieved by the date of separation.” 

• FC, § 4320, subd. (a) – “The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage.” 

• FC, § 4320, subd. (c) – “The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.” 

• FC, § 4320, subd. (d) – “The needs of each party based on the standard of living established during the marriage.” 

Family Code section 4320, subdivisions (a) and (c) are of particular interest to me for this article because they discuss the MSOL vis-à-vis the supporting party and not only the supported party (out-spouse). In my experience, the MSOL is often associated with only the out-spouse. This is important to keep in mind as it is often impossible for both parties to maintain their standard of living after the date of separation, primarily due to the inability for both spouses to continue to live in the same size residence as when they were married. However, in rare circumstances when there is substantial income, both parties can maintain a residence as they enjoyed during the marriage 

Determining MSOL 

As a family law forensic accountant, I think of two main methods of determining the MSOL: 

1. The expense method 
2. The income approach 

The expense method attempts to capture the actual expenses for a party and/or all or part of the expenses for the children. The income approach also attempts to allocate expenses to parties and/or children, but the income approach looks primarily at the sources of income to determine reasonable consumption. The expense method does not consider the income, it relies on actual or estimated expenses of one or both parties. 

MARRIAGE OF WEINSTEIN (1991) 4 CAL.APP.4TH 555 

This was a predecessor case to Cheriton and Ackerman. The parties lived beyond their means in Weinstein, so the court looked to income as the only available measure of a reasonable standard of living. At trial, wife was seeking $14,000 per month in permanent spousal support, but the court awarded her $8,500 per month. “Appellant [wife] contends the award must be reversed because the trial court employed an erroneous definition of marital standard of living, failed to award sufficient support to satisfy the need it determined to exist…”1 “Appellant’s (Wife) main contention is that the trial court erred in defining the marital standard of living by reference to the parties’ income during marriage rather than their actual expenditures…”2 The wife did not prevail in Weinstein. 

MARRIAGE OF CHERITON (2001) 92 CAL.APP.4TH 269 

In this case, the parties lived below their means. The parties saved what they did not spend. Husband was a computer science professor at Stanford University. However, Cheriton had the unusual circumstances that there was a post-nuptial agreement by which husband received a $45 million windfall as his separate property after the sale of a side business to Cisco Systems, Inc. The Cheriton case stated a court can order support above MSOL, particularly true where parties lived below their means (savings). A mathematical formula of MSOL based on income and expenses, less husband’s share of the household consumption was affirmed. In Figure 1 (below) is a schedule representing my mathematical interpretation of the Cheriton court’s determination of MSOL and the imputed income and support components that enabled the Cheriton out-spouse wife to maintain her MSOL. 

It is important to note that the court included 100% of the children as part of wife’s marital standard of living. If there were no children, there would theoretically be no need to make an adjustment for husband’s “absence from the household” on line four in the table above, and the determination of MSOL would be more straightforward. In the Cheriton case, the husband remained in the family residence after separation while the wife and four children were living in a cramped living space, with the four children sharing two bedrooms and the wife sleeping on a couch. Husband was able to maintain his standard of living in the family residence with the assistance of the $45 million he received as his separate property post-separation. 

MARRIAGE OF ACKERMAN (2006) 146 CAL.APP.4TH 19 

In this case, the parties lived beyond their means, as in the Weinstein case. Mr. Ackerman was a Newport Beach, Orange County plastic surgeon. Below, in Figure 2, is my schedule interpreting the Ackerman court’s determination of MSOL and the income and support components that enabled the Ackerman out-spouse wife to maintain her MSOL: 

Ackerman differs from Cheriton in that the children’s portion of the income/consumption is allocated 50% to each party (see line 4 in the table above). As this article segues to variations  that exclude children’s expenses, I pose a few questions/hypotheticals below: 

• If we hypothetically assume that the Ackerman’s children turned 18 two years after the court’s order above, does that mean that wife would be left with only $10,500 [$7,500 spousal support + $3,000 imputed income]? If there was a support modification, would a court give wife increased spousal support from funds that were previously spent on the children? If husband no longer has his child support obligation, his net spendable income would be approximately $30,000 vs. wife’s approximate $10,000. That is quite a large disparity between the parties. 

•  If the Ackermans never had children and their total combined income was the same as in the Ackerman case, wife’s net spendable income would be significantly higher than the scenario above where I posit Mrs. Ackerman’s net spendable income after her child support terminates. 
• I believe it is safe to assume that if the parents were not spending/investing money on their children, the parties would have spent that money on themselves and/or saved the funds. So, can an argument be made that children’s expenses could be converted to savings as a component of wife’s MSOL once the children turn 18? 

Excluding Children’s Expenses in a Cheriton or Ackerman Framework 

California family law forensic accountants will often exclude children’s expenses in Cheriton/ Ackerman analyses, even though such exclusions are not present in the Cheriton and Ackerman cases. I have seen three resources/methods for excluding children’s expenses which are: 

1. With the income/cash flow, number of children, and all other inputs included in a DissoMaster™, make the custody percentage zero. This will result in a total child support amount that can be used to estimate children’s expenses. 
2. Another tool for estimating children’s expenses is the study “Estimating Personal Consumption with and Without Savings in Wrongful Death Cases” written by Martine Ajwa, Gerald Martin, and Ted Vavoulis. 
3. Finally, the annual “Expenditures on Children by Families” by the United States Department of Agriculture is another useful resource for estimating children’s consumption of a family’s income.

The results of the above methods of estimating and excluding children’s expenses are compared to the Cheriton and Ackerman cases in the hypothetical scenario that follows

Adjustment for Housing Expenses

Another common variation on a Cheriton/Ackerman analysis is an adjustment for housing. Like the adjustment for children, an adjustment for housing is not explicit in the original Cheriton/Ackerman cases. The concept of the housing adjustment is to allocate the housing expenses typically to the out-spouse. Again, a housing adjustment makes less practical sense in a situation where there are not enough funds to pay for two households of similar expense, which is the case for an overwhelming majority of families. Below Figure is an example with an adjustment for housing expenses compared to a hypothetical Cheriton : 

Isolate the Estimated Expenses for Only One Spouse 

Instead of an adjustment for children, sometimes an adjustment will be made to estimate only the out-spouse’s consumption, sometimes in combination with a housing expense adjustment. In addition to estimating children’s expenses, the aforementioned “Estimating Personal Consumption with and Without Savings in Wrongful Death Cases” study can also be used to estimate the household consumption of one adult in families. Such an example is depicted in the table below, again compared to a hypothetical Cheriton: 

Adjustment for CPI Inflation

Family law attorneys and forensic accountants should consider adjusting the MSOL for the increase/ decrease in inflation and/or the consumer price index (CPI). This is especially important when the date of separation is at least five years earlier than the date of trial. In the table (Figure 6) below on line 9, the MSOL can be increased by approximately 8.58% using the increase in CPI over the five years that  elapsed since the date of separation. A very easy-to-use CPI inflation calculator can be found at the following website: https://www.bls.gov/data/inflation_calculator.htm. 

Conclusion 

Analyses are often labeled as being faithful to the principles enunciated in Cheriton and Ackerman, but they are not. Usually, they are a variation such as discussed earlier herein. Practitioners should be aware of the intentions and methods of the Cheriton and Ackerman courts and how their orders resulted in the out-spouse’s MSOL. Practitioners should also be aware of common variations on Cheriton and Ackerman and some of the tools that are used to effectuate those variations. 

Acknowledgments 

We thank our colleague Blair Slattery, CPA/ABV who provided insight and expertise that greatly assisted this research and the Association of Certified Family Law Specialists for granting authorization to reproduce this article, originally published in Journal of the California Association of Certified Family Law Specialists (Summer 2020, No. 3). 

References 

1. Marriage of Weinstein (1991) 4 Cal.App.4th 555, 559. 

2. Id. at p. 565 

3. Martine Ajwa, Gerald Martin & Ted Vavoulis. Estimating Personal Consumption with and 

Without savings in Wrongful Death Cases. (2000). Retrieved from: http://citeseerx.ist.psu.edu/viewdoc/download?doi= 10.1.1.1013.8376&rep=rep1&type=pdf.
Note: may require subscription to access. 

4. United States Department of Agriculture. Expenditures on Children by Families. Retrieved from: https://www.fns.usda.gov/resource/expenditures-children-families-reports-all-years

While apparently many lawyers seem to just use the Dissomaster even for permanent spousal support, the court is not supposed to use it for permanent spousal support. So it’s better for you to understand how the court is evaluating how much the permanent spousal support is.

Best is to get an expert report from a forensic CPA accountant. They can help to evaluate your own situation and prepare a report that the court can use. Below are the factors that may be considered in the calculation.

Spousal support is gender-neutral, meaning either spouse can request it from the other. However, the hallmark rule in any spousal support case is that the requesting spouse needs the support, and the other can provide it. If you can’t pass this basic test, the court won’t award any support.

For temporary support requests, the court will gather financial information from each spouse, including information about income, expenses, assets, and debts, and then determine an amount using a temporary support calculator. Typically the Dissomaster. But there is a simple formula that you can also use to cross-check it.

For the other types of spousal support offered in California (rehabilitative and permanent), the court will determine each spouse’s income and evaluate the following factors to determine a final amount for spousal support:

• each spouse’s earning capacity
• the extent to which the supported spouse contributed to the other’s educational degree or professional license during the marriage
• the paying spouse’s ability to pay spousal support, considering earning capacity, earned and unearned income, assets, and standard of living
• each spouse’s needs, based on the marital standard of living
• each spouse’s debts and assets, including separate property
• the length of the marriage
• the supported spouse’s ability to become employed without interfering with the care of the parties’ minor children
• each party’s age and health
• whether there is a documented history of domestic violence against either party or the children
• tax consequences to each party
• the balance of hardships to each party
• the goal that the recipient spouse will be self-supporting within a reasonable period
• any criminal conviction of an abusive spouse, and
• any other factors that the court wishes to consider (CA FAM §4320.).