The court can order the husband or wife to pay support during the divorce proceeding. This form of support is sometimes called “pendente lite” support in divorce. It is ordered to maintain the living conditions and standards of the parties as close to the status quo as possible pending trial and the division of the assets and obligations.
The court must consider both the requesting party’s needs as well as the other party’s ability to pay in ordering temporary spousal support. The parties’ accustomed marital lifestyle may be used by the court as the main basis for a temporary support order. In reality, it is not generally possible to divide the status quo due to the increased costs of separation, so at best the court can divide the family income to maintain the parties in an approximation of their situation before separation.
There are instances when temporary support may not be awarded. For example, if a spouse has been convicted of domestic violence against the other spouse within 5 years of the family law proceeding, there is a presumption against awarding temporary spousal support to the abusive spouse. Any history of domestic violence will be considered by the court. Temporary spousal support also cannot be awarded to a spouse convicted of attempting to murder the other spouse.
A party’s default does not render him or her ineligible for support. The court can still award temporary support to a party even after that party’s default. In such a case, the award is based on need, and the merits and procedural posture of the case are irrelevant.
Court Schedules of Formulas
Temporary Spousal Support utilizes local rules in its computation. To this end, many courts have adopted schedules or formulas for determining temporary spousal support that divide the family income proportionately. (For example, in Placer County, local rules require the use of the Alameda County Guideline Formula in calculating temporary spousal support.) These guidelines are based either on the net income of the party being asked to pay or on the net incomes of both parties.
The use of these guidelines, however, is not mandatory. The court is allowed to deviate from them in cases with unusual facts or circumstances. The following are some of the special circumstances that merit deviation from the guideline:
- Tax consequences contemplated by the guideline (such as temporary spousal support not to be taxable to the recipient, are incorrect)
- 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
The court can order support 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
Take note that the court also retains the power to order temporary spousal support during the pendency of any appeal. If the order has not been terminated, the obligation to pay continues even if the action is not being actively tried in court. Payments that accrue before termination remain enforceable after termination. The order is also not enforceable during any period when the parties have reconciled and are living together.
Modification of Temporary Spousal Support
A temporary support order can be terminated or modified by the court at any time. The power to modify or terminate is limited by two respects:
- 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.
It is better to show a change of circumstances when petitioning the court for a modification. Many judges deny modification of temporary spousal support when no change of circumstances is shown. This is due to the fact that parties may abuse the system and keep returning to court in the hope of a move favorable ruling.