Temporary Orders – Spousal Support, Child Support & Custody, & Property

Once the Petition for Dissolution of Marriage or Separation has been filed or when a parent files a Child Custody or Child Support Request, the court can make several Temporary Orders.

Child custody or visitation

During pendency of a proceeding where the custody of a minor child is in issue, the court may make whatever temporary custody order “seems necessary or proper”. With that said, all custody matters are subject to the statutory standards rooted in the child’s best interests, with the primary concern being the child’s health, safety and welfare. With all things being equal, it is recognized that it is in the child’s best interest to have frequent and continuing contact with both parents.

In situations involving domestic violence or child abuse, there is a presumption that it is not in the child’s best interest for the perpetrator to have joint or sole custody of the child. In these situations, the court will typically grant only visitation rights, which may only be by supervised visitation. Sole legal and physical custody of the child is typically granted to the other parent. Keep in mind that these order are temporary and they may evolve or change as the matter progresses.

Child Support

When minor children are involved the court may order either or both parents to pay “any amount necessary” for the support of the child. This includes a child that is 18 years old and still attending high school. Not withstanding the broad “any amount necessary” language, all courts are required to adhere to the statewide uniform child support guidelines in fixing the amount of child support and allocating the obligation between the parents.

Once calculated by the child support calculator, it is presumptively the correct amount of child support and can only be deviated from under special circumstances. Child support attorneys use a computer software program to calculate the guideline child support, such as DissoMaster.

If the court orders a parent to pay child support, it is retroactive to the date of the filing of the petition or other initial pleading for child support. In contrast, typically orders modifying or terminating child support are retroactive to the date the request to modify or terminate is filed. Special note: temporary child support orders are not enforceable during any period in which the parties have reconciled and are living together.

Spousal Support

Before a final judgment, the court may order either party to pay spousal support in “any amount that is necessary” for the other party’s support. In the event the spouse seeking support has a history of domestic violence or has been convicted of a violent sexual felony, he or she is typically not entitled to spousal support. Absent domestic violence and other such wrongful conduct, the court has broad discretion in fixing a temporary spousal support amount.

The court looks to the parties’ accustomed marital lifestyle as the benchmark for a temporary spousal support award. This approach supports the purpose of temporary spousal support, which is to maintain the parties’ “status quo” living conditions and standards prior to separation, as much as possible.

In contrast, “permanent” spousal support is intended to provide financial assistance, if appropriate, as determined by the parties’ circumstances after dissolution and division of their community estate and weighing of the permanent spousal support factors.

Despite that “status quo” language, everyone should recognize that it costs more to maintain two houses, rather than one. Therefore, even when circumstances warrant a temporary spousal support award, the other party may not have the ability to pay or the amount will not be enough to provide the pre-divorce lifestyle. Accordingly, regardless of the marital lifestyle the court must look to and balance the need of the requesting spouse with the other spouse’s ability to pay.

One factor to keep in mind is that if the spouse seeking support is living with another person that is supporting the spouse or contributing to living expenses, an argument can be made that the spouse’s need for support is reduced or nonexistent.

The court can consider all assets, income and even impute income to a spouse that it feels can and should be working or making more money when determining the proper amount of spousal support.  Absent these special circumstances, the court will utilize a calculation based solely on the parties’ relative incomes.

Sonoma County has adopted the Alameda Guideline formula for calculating temporary spousal support. This guideline provides that support be presumptively 40% of the supporting spouse’s net income, reduced by one-half of the supported spouse’s net income. If child support is an issue, spousal support is calculated after child support is calculated.

Calculating spousal support using a guideline is a useful tool in estimating the amount of spousal support that the court may order. However, it’s a guideline only and is not binding on the court. Every situation is different and the parties can present any evidence they believe is important to determining the proper amount of temporary spousal support, if any. It is within the court’s discretion as to whether the award of spousal support is retroactive, which again is guided by the supported spouse’s need and the supporting spouse’s ability to pay. While appropriate for temporary purposes, the spousal support calculator cannot be used for purposes of permanent spousal support.

There can be creative room to reduce or eliminate spousal support, if the paying spouse is paying community property debt. For example, spousal support may not be necessary or it can be reduced if one spouse is living in the house and the other is paying the mortgage.

Property

Spouses stand in a fiduciary relationship with regard to the management and control of their community and quasi community property until the date of a final distribution. This fiduciary relationship extends to all activities affecting the other party’s property and support rights.child custody

  • Bank Accounts

As a fiduciary, either party can take advantage of a statutory “adverse claim” procedure under which joint bank accounts may be frozen for a limited time. If one party believes that the other is about to take or misappropriate money in a joint bank account, that party may request that the bank freeze the account under certain circumstances for up to three (3)court days. This gives the spouse immediate protection and time to prepare and obtain an injunction.

  • Debts

Further, pending trial and final judgment, the court may issue an order determining the temporary use, possession and control of the parties’ real or personal property and the payment of liens or encumbrances.  For example, the court can decide who takes possession of the house or a car and how debt or loan payments are to be split between the parties. Failure to make monthly debt payments endangers the property-think foreclosure or repossession-and, is thus a breach of the fiduciary duty one spouse owes to the other.

If your think about getting a divorce or have already started the process and need guidance, we can help. Figuring out the fair and equitable amount of support may seem straightforward, but it can be very complicated depending on your situation.  There is usually plenty of room for a creative and hardworking attorney to ensure you pay or receive the proper amount of child or spousal support, if any. It is very important to discuss your unique situation with an attorney experienced in calculating child and spousal support.