Spousal support should be determined objectively

Under California law, the amount of permanent spousal support is supposedly determined by an analysis of the statutory factors listed in Family Code Section 4320(a)-(n), which include, "[a]ny other factors the court determines are just and equitable."

There are multiple objections to the current state of the law. To begin with, the required analysis is entirely subjective, a problem that is compounded by a lack of transparency. The trial judge is not required to consider and weigh all of the statutory factors. Although that may be the better practice, trial judges may consider only those factors they deem applicable. Even if the trial judge considers every applicable statutory factor in setting spousal support, the trial judge need not set forth in writing or on the record how each one was weighed. Marriage of Cheriton, 92 Cal. App. 4th 269 (2001). A judge's permanent spousal support order will be reversed only if he or she fails to consider any of the statutory factors. Marriage of Kahan & Diamond, 2021 DJDAR 12600 (Cal. App. 2nd Dist., Dec. 9, 2021).

Apart from these objections, weighing the statutory factors is meaningless unless that process can be translated into a specific dollar amount. However, a process that is inherently subjective cannot yield an objective answer.

As a result, the amount of permanent spousal support is determined by the exercise of the trial judge's sound discretion. This process works well for judges. As a general rule, judges would prefer to exercise discretion based on their evaluation of the facts and circumstances of each case instead of being bound by a set of guidelines. As a practical matter, any spousal support order will be upheld on appeal unless it is deemed to be an abuse of the trial judge's discretion.

It also works well for divorce litigators who prefer to have as much "running room" as possible when it comes to representing their clients. After all, if an issue is determined by the application of statutory guidelines to objective facts, there is virtually nothing to argue about.

This process does not work so well for the parties. It increases the cost of the litigation by providing the parties' attorneys with an issue as to which reasonable lawyers can disagree. It also increases the uncertainty of how that issue will ultimately be resolved by a judge. Reasonable judges can also disagree. The amount of spousal support should not depend on how any individual judge in any given case decides to exercise his or her discretion on any given day.

Even after 50 years of California's no-fault divorce law, appellate courts still disagree about the interpretation and application of the statutory factors. Consider the opinions in Marriage of Epstein, 24 Cal. 3d 76 (1979) (consideration of a parent's contribution to the support of an adult child in college is not an abuse of discretion); Marriage of Paul, 173 Cal. App. 3d 913 (1985) (consideration of a parent's contribution to an adult child's college education is permissible); and Marriage of Serna, 83 Cal. App. 4th 482 (2000) (consideration of a parent's contribution to an adult child's college education is impermissible). Last year, the 4th District Court of Appeal appears to have finally settled the matter: Maher v. Strawn, 63 Cal. App. 5th 356 (2021), upheld the trial judge's consideration of the payor's contributions to a child's college education in setting the amount of spousal support.

There is no evidence that analyzing the statutory factors promotes consistency, let alone justice. To the contrary, the interests of the parties would be better served if the amount of permanent spousal support was determined the same way as the amount of child support. At the very least, similarly situated parties would end up with comparable results.

The amount of child support is determined by an algorithm adopted by the California Legislature that is incorporated into the DissoMaster computer program. In brief, the amount of child support reflects the application of statutory guidelines to the objective facts of the case. Those objective facts include the amount of each party's income from all sources, custodial percentages, contributions to retirement accounts, deductions for mortgage interest and property taxes, charitable contributions, and so forth. The amount of child support as determined by the DissoMaster computer program is rarely an issue on appeal.

The case for using the DissoMaster computer program to determine the amount of permanent spousal support is even more compelling because that program is routinely used to determine the amount of temporary spousal support, which may be in effect for many months, or even years until the case is finally resolved either by settlement or trial.

The primary reason that the DissoMaster computer program is used to determine temporary spousal support but not to determine permanent spousal support does not withstand analysis. The stated rationale is that the amount of permanent spousal support is always lower than the amount of temporary spousal support because each party has received his or her share of the community property. There are several flaws in that rationale: First, there may be no significant community property. Second, even if there is substantial community property, it may not generate income; the equity in the former family residence and the value of a professional practice are examples. Third, assuming that each party's share of the community property generates income, that income would be taken into account by the DissoMaster computer program.

To be sure, judges should have a measure of discretion under extraordinary circumstances. Even when it comes to child support, a judge has the discretion to modify the guideline amount if specified criteria are met. See Family Code Section 4056. Trial judges could be given comparable discretion when it comes to the amount of permanent spousal support. 