Temporary spousal support is an award made by the court, ordering either the husband or the wife to pay any amount necessary for the support of the other party. It is awarded during the pendency of a proceeding for dissolution of marriage or legal separation. It is also called “pendente lite” support. The purpose of temporary spousal support is to maintain the living conditions and standards of the parties as close to the status quo as possible, pending trial and division of the parties’ assets and obligations.
In ordering temporary spousal support, the family court must consider the moving party’s needs and the other party’s ability to pay. The court can use the couple’s lifestyle during the marriage as the main basis for a temporary support order. It is not really possible to maintain the status quo lifestyle before the dissolution of the marriage, so the best the court can do is to equitably allocate the family income to maintain the parties in as close to their pre-separation condition as possible.
Any history of domestic violence between the parties will be considered by the court in awarding temporary spousal support. There is a presumption against awarding temporary spousal support to a spouse who has been convicted of domestic violence against the other spouse within 5 years of the family law proceeding. In the same vein, temporary spousal support must not be awarded to a spouse convicted of attempting to murder the other spouse.
The court has jurisdiction to award support to a party even after the said party has defaulted. Such an award will be based on need, and the merits and procedural posture of the case are irrelevant.
Use of Court Schedules of Formulas
Unlike permanent spousal support, temporary spousal support is computed using local rules. Many courts have adopted schedules or formulas for determining temporary spousal support. These guidelines divide the family income proportionally based on either the net income of the party being asked to pay support or on the net incomes of both parties.
The use of guidelines promote consistency in temporary support orders and may reduce the need for hearings. However, the use of guidelines is not mandatory and should be used in cases with unusual facts or circumstances. The following are some special circumstances that might justify a deviation from the guideline amount:
- Tax consequences contemplated by the guideline
- Party is paying spousal or child support from a prior relationship
- Party is encumbered with unusually large mortgage payments or other monthly payments
- Party has special needs or special expenses
Duration of Temporary Spousal Support Order
Temporary spousal support can be ordered by the court from the time of the filing of a petition for dissolution of marriage. The order remains in effect until:
- Judgment is issued
- The case is dismissed
- The order expires on its own terms
The court also has the power to order temporary support during the pendency of any appeal. If there is no termination of the order of support, the obligation to pay continues to accrue even if the action is not being actively litigated. Payments that were supposed to be paid before termination can still be enforced after termination. The support order, however, is not enforceable during any period when the parties have reconciled and are living together.
Modification of Temporary Spousal Support
A court can modify or terminate an existing spousal support order at any time. The power to modify however is limited by the following:
- The court cannot modify or terminate the payor’s liability for payments that accrued before the date of filing the notice of motion or order to show cause to modify or terminate the order.
- The court may not retroactively modify a temporary support order.
Temporary spousal support can be modified without a showing of changed circumstances. However, based on experience, most judges deny modification of temporary spousal support when no change of circumstances is shown. This is to prevent parties from continually petitioning the court for modification in hopes of a more favorable ruling.