As a divorce attorney, I often find the need to obtain temporary court orders for spousal support for my clients. When a divorce or legal separation action is pending, the court may order either spouse to pay any amount necessary for the support of the other spouse pursuant to California Family Code Sections 4320(i), (m), and 4325. An action is “Pending” from the time the petition is filed until its final adjudication on appeal or until the time for appeal has ended. The Court may make a temporary spousal support order retroactive to the date of filing of a petition requesting spousal support.
DETERMINING TEMPORARY SPOUSAL SUPPORT
So, how does a court determine who will pay and how much spousal support should be paid? There are two basic factors for the court to consider in awarding temporary spousal support. First, the court evaluates the applicant’s need for support and the other party’s ability to pay. (See Marriage of Stich (1985) 169 CA3d 64, 74, 214 CR 919. Temporary spousal support may be ordered in any amount based uon the party’s need and the payor’s ability. Findings of the trial court on need and ability are reviewed under the abuse of discretion standard. (See Marriage of Wittgrove (2004) 120 CA4th 1317, 17 CR3d 489)
Generally, courts take the view that the purpose of temporary spousal support is to enable the supported spouse to live in his or her accustomed manner pending disposition of the action (See Estate of Fawcett (1965) 232 CA2d 770, 784, 43 CR 160. See also Marriage of Wittgrove, supra; Marriage of Winter (1992) 7 CA4th 1926, 1932, 10 CR2d 225) However, courts do recognize that incomes are often insufficient to support two separate households and still maintain the same standard of living during a pending divorce.
Courts typically refer to “Guidlines” in an effort to determine temporary spousal support. A trial court’s use of guidelines based solely on affirmed income is appropriate. See Marriage of Winter (1992) 7 CA4th 1926, 1933, 10 CR2d 225. However, the Court may not use “Guidelines” when determining long term spousal support.
A temporary spousal support order is terminated by the issuance of a judgment, dismissal of the pending action or expiration under its own terms. An order for temporary spousal support may be modified or terminated by the court at any time. Modification or termination may not, however, affect the payor’s liability for payments that accrued before the notice of motion or order to show cause to modify or terminate was filed. (See California Family Code Section 3603)
Temporary spousal support may be modified without a showing of a change of circumstances (unlike post judgment spousal support). See Sande v. Sande (1969) 276 CA2d 324, 329, 80 CR 826.
Current circumstances: In evaluating the parties’ respective needs and abilities to pay, the court cannot engage in speculation. Its order must reflect the present facts and circumstances, based on evidence in the record and inferences reasonably drawn therefrom at the time of the hearing. [Marriage of Prietsch & Calhoun (1987) 190 CA3d 645, 656, 235 CR 587, 590;Marriage of Baker (1992) 3 CA4th 491, 498, 4 CR2d 553, 557; seeMarriage of Rosen (2002) 105 CA4th 808, 824, 130 CR2d 1, 10—abuse of discretion to fix spousal support on basis of self-employed obligor's average income 2 years before support hearing where evidence at time of hearing showed substantially lower income]