How Does Marital Standard of Living Affect Spousal Support?
Contrary to widespread information, the marital standard of living (MSOL) is not the most significant factor in the award of spousal support. In fact, the MSOL is only one of the 12 factors set forth in Family Code Section 4320 which the Court must consider in setting spousal support.
People are often confused by the significance and the importance of the MSOL factor because of its place in the order of the 12 factors. However, even though it is the first factor to be named, it is no more important to the calculation of spousal support than any of the other 11 factors.
The MSOL is calculated by reviewing the expenses of the parties, particularly during the last three to five years before the date of separation.
What are PITI expenses within the marital standard of living?
The MSOL simply sets forth the amount at which both parties would have sufficient income (from all sources) to live at the MSOL. It is axiomatic that “two people can live as cheaply as one.” This applies specifically to what is called the “PITI” expenses: Principal and Interest (mortgage payment), Taxes (property), and Insurance. The PITI expenses usually make up about 40 percent of the expenses of the parties during marriage. Therefore, it does not matter if there are two people in the family or ten, as these PITI expenses will not vary.
On the other hand, the “user” expenses (everything else including, but not limited to, food, clothing, gasoline, insurance, entertainment, vacations, and gifts) will be significantly impacted by the number of people living at the residence for the three- to five-year period before the date of separation. For this area (the non-PITI expenses), it is not true that “two can live as cheaply as one.”
During that last three- to five-year period upon which the marital standard of living can be calculated, there may be one or two incomes, depending upon which of the spouses is employed. However, when the parties separate, it is highly likely that neither will earn sufficient amounts to be able to meet the MSOL expenses of each party.
Therefore, each party will find herself/himself in a standard of living which is lower than they enjoyed together before the date of separation.
The only time the MSOL truly becomes a factor in this calculation is when the spouse who is receiving spousal support has sufficient income, through a combination of earnings, spousal support, and any other source of income, to pay that party’s MSOL expenses. At that point, there is a presumption against any increase in the amount of spousal support, as the marital standard of living is being met with the current amount.
– James Parke, Partner, Certified Family Law Specialist (CFLS), Senior Trial Attorney