In determining the amount of Spousal Support, the Marital Standard of Living is a reference point only in determining reasonable needs and maintaining the marital status quo for permanent support.
At Nouri Law it is our position, based on Family Code §4330, that Marital Standard of Living is not an absolute measure of reasonable need, it is merely a reference point, and we have successfully argued this in court. With the passage of time, this criteria becomes less relevant. We refer to the decision in the important case, In Re Marriage of Rising (1999).
For Permanent Spousal Support orders, the Marital Standard of Living is the foundation for a need-based analysis. However, what happens when parties live beyond their means? Many families live the American dream that they cannot afford. Therefore, using that style of living as a bench mark for setting support is improper. In such cases, we rely on In Re Marriage of Smith (1990).
In the other extreme, if parties live a deliberately depressed standard of living, the court has discretion to consider “expectation” of a future improved standard of living in setting spousal support. Here, we rely on In Re Marriage of Watt (1989).
Once we start evaluating the parties’ incomes, savings, and investments, we can counsel you regarding your exact exposure, and we will be happy to evaluate your case and minimize your exposure by relying on favorable case law. Since not all attorneys are created equal, we can argue your case to maximize your interests, if and when warranted.
It is our position that any sample of income for purposes of calculating support must be fair and representative of actual income. We have successfully argued that support could not be set based upon seasonal or fluctuating income.
The Court may award “alimony” or spousal support to one party in a divorce or legal separation proceeding based either on an agreement between the couple or a decision by the Court itself. A Court decision is based on the parties’ incomes. This limits any unfair economic side effects of a divorce by providing a continuing income to a non-wage-earning or lower-wage-earning spouse.
The Court has broad discretion in determining whether to award alimony and, if so, how much and for how long. The Court considers many factors in awarding spousal support, such as:
- The age, physical condition, emotional state and financial condition of the spouses;
- The length of time the recipient needs for education or training to become self- sufficient;
- The couple’s standard of living during the marriage;
- The length of the marriage; and
- The ability of the payer spouse to support the recipient and still support himself or herself.
What is Cash Flow?
“Cash flow” has been used as income and by some forensic accountants to set support, but use of this phrase was rejected in In Re Marriage of Riddle (2005). Support should be based on a stable number and a reasonable predictor of income.
We will be happy to navigate your case to reach a fair end result.
We impute income when there are non-income producing assets, or when imputation of earnings to liquidated capital assets is appropriate, based upon facts of the case.
At times, we impute income to receive a fair rate of return. For long-term secured investments such as Government Bonds, we could consider the reasonable rate minus management of the investment as a fair and available rate of return.
Sometimes we use imputation of income when tax returns or a party’s Income and Expense form negates his/her claim that income is much lower. When an individual’s employee benefits are disguised as business deductions, we request that the court add some of those business expenses to the individual’s income to increase his/her actual income. We argue that all employment-related benefits not reported as income, such as “perks”, should be added as income by using a two-step process.
We explore all non-income factors in establishing or reducing support. At Nouri Law we are here to help you, and we will utilize our practical experience and knowledge of family law to maximize your best interests.