September 14, 2016
Choosing To Mediate Your Divorce: Taking a Deeper Look at Spousal Support and Child Support Law in California
(Four minute reading time)
Every state has a different approach to spousal and child support. This points out to us, like a big neon sign, that what happens around support orders in California Family Courts is not necessarily what’s fair or just or a best possible outcome. It’s closer to being, “Just what we do.” For instance, in Texas, spousal support—also called alimony—is only awarded in cases where the people have been married for ten years or more; prior to that ten year mark, a lower income wage earner is SOL in a Texas Family Court, no matter the circumstances (and I can’t help but mention another huge difference in comparison to California: Texas Family Courts are not supposed to make any alimony order for longer than three years unless the lower income wage earner is disabled or practically disabled). As to child support, in Oregon, parties, attorneys, and judges use a handy-dandy free online calculator which factors gross income mixed with the child-share percentage, medical insurance costs, childcare costs, and viola, you have your support amount; they deftly avoid the quagmire of complexity in California due to its emphasis on net income and a multitude of further factors.
So when you and your spouse are deciding whether to use traditional family law attorneys and the court system to dictate your support terms or whether to use a mediator so you can work out your own approach to support, you may want to remember that the law is not some magic bullet of fairness. How could that be true if all the states do things differently, and sometimes vastly differently?
And another factor to weigh when considering the realities of how support is decided in a traditional, court-based legal process, and whether it would be a much better idea for you to opt-out of that process by working together in mediation, is that California Family Law takes very different approaches to factoring what is fair spousal support and what is fair child support. They are, legally, like night and day.
Spousal support, and how it’s calculated in California, is a bit like the Wild West. There is no calculator or preset approach for arriving at either a permanent amount or how long spousal support will last. Instead, spousal support is based on a 16-point analysis, which lists the last point as, “and anything relevant,” which really just makes it an intellectual free-for-all. The reality is this: I could take one of my client files into Courtroom A in a California county…the judge could review my clients’ Financial Disclosure and ask me a few questions and could decide that support will be X-amount for X-amount of time; then I could take that same file, in the same county, into Courtroom B, and the different judge of that courtroom could analyze the same file, the same facts, and come up with a totally different amount for totally different amount of time. True. And traditional family law attorneys often try to sell their ability to make spousal support not such a free-for-all by bring up the temporary support calculator and the “ten year” suggestion given by the legislature. But when they do this they exaggerate the utility of those two factors because by the time a client realizes that’s not the only way it works….it’s too late to turn back from the court-based legal process.
In contrast, child support in California is based on a complex “guideline” calculator necessitating that family law attorneys and judges be adept at reading people’s tax returns and also have the proper training to understand how the calculator computer program works. So for better or worse, this complexity can leave attorneys and/or judges reviewing and disagreeing over dueling versions of the calculator’s results. And the free online version of the calculator, in a case with any income/expense complexity, often spits out an amount different from the court-sanctioned Dissomaster program used by the courts and family law attorneys. The California legislature created the “guideline” calculator to prevent the family courts from having the same problems applying child support law as they do applying spousal support law—the legislators wanted people to be awarded the same child support amount whether they’re in Los Angeles County or Yolo County—and while the Dissomaster program lulls people into thinking it’s going to make the subject easy—“Like science!”—often the results can differ wildly from professional to professional depending on how adept they are with the calculator, and since the calculator doesn’t consider a party’s expenses or a child’s costs, its results can often be unsatisfactory to both parents.
In mediation, there are more benefits around developing spousal support and child support amounts than just being able to use your own judgment as to what is fair. It also gives people the structure to create a financially rational approach to support that can be lost in a court-based, purely legal process. The approach in mediation to looking at support is to first analyze both households’ expenses and income, and see where adjustments can be made to minimize support need; then to look at spousal support and child support as two cogs of the same wheel in trying to meet a balance of approach in amount in duration that takes into account the values of the parties, “what they think is fair,” the tax consequences of that balance, and what the long-term consequences of any potential agreement has on each party’s net assets.
Also, mediated support agreements give parties the opportunity to avoid the bitterness which can linger for months or years after a divorce is final due to support orders that are forced on one or both people in the court-based legal process by choosing mediation and developing their support agreements themselves.
I’m not saying the mediating child support and spousal support is easy, but I am saying that most people are much better served in mediation and keeping control of what ultimately gets decided, rather than entering the Wild West of a California Family Law court-based legal process.