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How Does A Court Determine The Amounts To Be Paid For Temporary Spousal Support

by Russell H. Thaw, Esq. - The Reape-Rickett Family Law Firm

Russell H. Thaw, Esq. - The Reape-Rickett Family Law Firm

As Opposed to Permanent Spousal Support

First, it must be noted that Courts have broad discretion to fashion spousal support awards, and no order for spousal support, either pendente lite (temporary), or permanent support will be overturned on appeal unless for abuse of discretion.

Keeping that in mind, immediately after separation, an award of temporary spousal support is utilized to maintain the living conditions and standards of the parties in as close to the status quo position as possible pending trial and the division of their assets and obligations.

The purposes of pendente lite allowances to a wife or former wife are to maintain her in her accustomed manner of living pending the outcome of the action and to enable her to present her side of the controversy fully. On the other hand the object of permanent allowances is to make an equitable apportionment between the parties.

The Court may use "Guideline" (DissoMaster) support schedules when fashioning an award of pendente lite spousal support (temporary spousal support), but one schedule of guidelines for support cannot be used for both temporary and permanent spousal support orders, since the purpose of a temporary order of spousal support is far different than that of a permanent order. Temporary spousal support is utilized to maintain the living conditions and standards of the parties in as close to the status quo position as possible pending trial and the division of their assets and obligations.

The purpose of permanent spousal support is not to preserve the pre-separation status quo but to provide financial assistance, if appropriate, as determined by the financial circumstances of the parties after their dissolution and the division of their community property.

But even these general principles give way to the broad discretion of the Court to fashion a spousal support award when meeting the needs of individuals involved in the litigation before the Court. See, for instance, In re Marriage of Winter (1992) 7 Cal.App.4th 1926, 10 Cal.Rptr.2d 225, [Wife entitled to temporary spousal support in excess of need where parties' lifestyle included use of discretionary income for savings and investment, thus the temporary order preserved status quo].

There are fundamental differences in the functions and purposes of pendente lite support and permanent support orders. The court, in making each award, is governed by different authority.

The temporary support award is usually obtained soon after the filing of the petition and before any final determination on the various issues in the dissolution. Its purpose is to maintain the living conditions and standards of the parties as closely as possible to the status quo, pending trial and the division of the assets and obligations of the parties. The effect of a temporary order is governed by Family Code section 4337, which precludes consideration of the pendente lite order at the hearing on the permanent order.

The purpose of permanent spousal support is to provide financial assistance, if appropriate, as determined by the financial circumstances of the parties after their dissolution and the division of their community property. The determination of permanent spousal support at trial must be de novo. Only at trial is all the evidence presented. The permanent order is to be based upon circumstances existing at trial, and a change of circumstances from the time of the pendente lite order is irrelevant to a determination of the amount of support which is just and reasonable at that time.

Experienced family law practitioners know that the temporary support award can have a significant impact on the permanent award. This is so for a number of reasons. First, it has a psychological effect in that the paying spouse gets used to paying a certain level of support. It is often possible to get paying spouses to stipulate to high pendente lite awards by assuring them that they are only "temporary." After they get used to paying support at that level, it is easier to continue long-term. Of course, the same logic in reverse can be applied to convince the supported spouse to accept an abnormally low temporary support award.

Second, the supported spouse will usually adjust his or her standard of living to the amount of the support s/he is receiving. If s/he does well on the temporary award, trial courts may simply continue the order in effect. (See In re Marriage of Aufmuth (1979) 89 Cal.App.3d 446, 152 Cal.Rptr. 668, disapproved on other grounds, Marriage of Lucas (1980) 27 Cal.3d 808, 166 Cal.Rptr. 853, 614 P.2d 285 and In re Marriage of Roesch (1978) 83 Cal.App.3d 96, 147 Cal.Rptr. 586.)

Third, the award has a psychological impact on the trial judge. Trial judges almost always want to know the amount of the pendente lite award and how well the parties did on it. At the very least, it represents the considered opinion of another (or perhaps the same) judge as to what level of support was appropriate. If the award was totally without significance, why would trial courts even care what it was?

The moral is simply to be aware of the significance of the temporary support order and to enter into any stipulations or to prepare for the OSC with this in mind. Since the temporary spousal support award sets the tone for the case and, despite all judicial pronouncements to the contrary, has a profound influence on what the final support award is likely to be, a great deal of care and preparation should go into the temporary support hearing.

It is important to remember that the supported spouse's expenses after the dissolution is final will likely be higher than they were before. S/he is likely to have to purchase individual health insurance and pay taxes on spousal support, expenses which s/he may not have had under the temporary order.

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