Deciding to separate from a spouse can be nerve-wracking. One of the most common concerns people have is how they will support themselves during divorce proceedings.
Enter temporary spousal support.
What is Temporary Spousal Support?
Temporary spousal support is a monthly payment one spouse pays to the other while the couple finalizes their divorce. The extra monthly income allows the spouse who makes less money to remain financially stable during divorce proceedings.
Many divorce agreements will include a rehabilitative, or long-term spousal support agreement. The temporary order might stay the same in the finalized long-term spousal support order. It might also change.
The point of the temporary spousal support order is to ensure financial stability during divorce proceedings; it isn’t to get exactly what you want for the long term.
Child Support Vs Spousal Support
Spousal support is different from child support. You can receive separate orders for both. You can also receive temporary or rehabilitative spousal support if you don’t have children.
The Importance of Temporary Support
Divorce proceedings take a long time. Even uncontested or collaborative divorces can take longer than expected to finalize. All divorces are also subject to the six-month waiting period required by California law.
This means that your divorce will take half a year to finalize at a minimum. Don’t fall into the trap of thinking that your divorce will be finalized quickly so a temporary order isn’t necessary. It is essential, especially if you have a financial need.
Temporary spousal support can provide you with enough financial stability and peace of mind to prevent you from rushing through a divorce, just to get the finalized support order.
Who Qualifies for Temporary Spousal Support?
In most situations, the partner who makes less money will qualify for temporary spousal support. There are qualifications to be met and some exceptions to this rule though.
Qualifications for Temporary Spousal Support
Qualifying for temporary spousal support is straightforward. The lower-wage earner will qualify for spousal support as long as two main requirements are met. The state of California looks at the financial need of the lower-wage earner and the ability of the higher-wage earner to pay.
1. Financial Need
Having a financial need is the first qualification for a temporary support order. Judges will not grant an order if you are able to maintain your lifestyle on your income alone.
If both partners have large incomes, one will not be awarded temporary support. Being the lower-wage earner in a relationship where both partners have a high income doesn’t necessarily make you a candidate for temporary support in many situations.
A judge will consider your gross income and your expenses. If your gross monthly income cannot cover your expenses you have likely met the first criteria for a temporary spousal support order. You will probably not be granted temporary support if your gross income covers your anticipated or historic expenses (including savings, if that was your practice during the marriage).
2. Ability to Pay
The second consideration for a spousal order is the higher-wage earner having the ability to pay a monthly support amount.
If your spouse’s gross income doesn’t cover their expenses it will be harder to get a temporary support order, since you cannot get water from an empty well. However, depending on how your marital lifestyle was financed, you may have options.
Spousal Support Disqualifications
Not every lower-wage earner qualifies for temporary spousal support. There are a few exceptions. The following individuals are prohibited from receiving spousal support by California law:
- Someone criminally convicted of domestic violence (unless they meet certain strict qualifications)
- Someone who attempted to murder their spouse
- Someone who has sexually assaulted their spouse, children, or someone else
These disqualifications are true for temporary and rehabilitative spousal support.
If your spouse is the lower-wage earner but has also abused or assaulted you or your children you won’t have to pay spousal support if they have been convicted. It is important to have your spouse charged with domestic or sexual abuse officially for this reason.
How to Get Temporary Spousal Support
There are two main avenues for getting temporary spousal support. One you can do on your own, with the agreement of your partner. The other will be done by a judge.
Submit an Agreement
If both partners agree on temporary spousal support they can submit an agreement to the court system and it will become binding.
This is a cheap and easy route if both parties are in agreement.
Judge’s Order
If your partner refuses to pay spousal support or you can’t agree on the amount, you can file a request to have a judge mandate temporary support.
The judge will consider both partners’ incomes, expenses, savings, debts, and extenuating circumstances.
How Spousal Support is Calculated
A judge can order a temporary or rehabilitative spousal support order for any realistic amount. Most judges will follow a simple formula and consider any extenuating circumstances when deciding the temporary support amount.
Temporary Support Guideline Formula
There is a formula some judges use as a starting point when calculating temporary spousal support. The formula is 40% of the higher-wage earning spouse’s income minus 50% of the lower-wage earning spouse’s income.
For example:
Spouse A makes $10,000 a month and Spouse B makes $4,000 a month.
40% of Spouse A’s income is $4,000.
50% of Spouse B’s income is $2,000.
$4,000-$2,000=$2,000.
Barring any other circumstances, Spouse A could be ordered to pay Spouse B $2,000 a month of temporary spousal support.
This formula is not law though, and your judge may not use the formula at all. In fact, judges are not legally allowed to base their rulings solely on the guideline formula.
Judges will look at the entire picture before deciding a spousal support amount. The formula provides a starting point, but it often will not be the ending point.
Extenuating Circumstances
The amount of money each partner makes in a given month is not the only information needed when deciding spousal support. Judges look at each party’s total expenses and overall need. They also consider extenuating circumstances.
Debt
High medical bills, excessive debt, or other large, but necessary expenses can impact support amounts. If the higher-wage earner also has a lot of debt or is paying for something large, like a child’s college tuition, they might not be ordered to pay as much, or any spousal support.
If the lower-wage earner also has a lot of debt they might receive more than the spousal support formula assigns them.
Wealth
Stocks, bonds, or money in savings may also play a role in temporary spousal support payments. If the lower-wage earner has a lot of money in investments or savings they might not be awarded spousal support even though their month-to-month income is lower.
Unnecessary expenses or lavish spending might also lower the support award for the lower-wage earner.
When to File Spousal Support
It is important to file for temporary support early. A judge will usually backdate support to the date of your application. If you wait you could lose hundreds or thousands of dollars of spousal support.
You can apply for temporary spousal support once a family law case is opened.
Changing Temporary Spousal Support
Even though temporary spousal support agreements are not expected to be permanent, you can modify them.
In most situations, a spousal support amount will change because one partner loses a job or starts a new one. Either party can apply for a modification to lower or raise the spousal support amount.
If you want to file for a change do so quickly. Like filing for the original order, a judge can backdate changes to the date of the application. It is in your best interest to file as soon as you believe a modification is necessary.
Missing Payments
If the partner paying the spousal support isn’t self-employed they will likely be given an earnings assignment order. This order instructs their employer to withhold the spousal support amount each paycheck and turn it over to a state agency. The agency will then send the partner receiving the support their monthly support amount.
It is difficult to miss payments with the earnings assignment order. Someone cannot ask their employer to stop removing the support payment. A partner would have to leave their job to stop payments.
Self-employed partners will not have an earnings assignment order since they pay themselves. If your partner is self-employed and they miss payments you can work with a judge to have back payments sent to you. These payments are called arrearages.
There are situations where one partner will refuse to pay spousal support. If your partner isn’t paying and hasn’t applied for a modification, you can take them to court for an order enforcement.
Shifting From Temporary to Rehabilitative Support
Temporary spousal support orders will eventually be replaced with rehabilitative or “permanent” support. The support amount might be the same, but the purpose and terms will be different.
Rehabilitative support, or alimony as it used to be called, is long-term support with stipulations or a timeline attached. More on that in the next article though…
You don’t need to worry about rehabilitative support when you are figuring out a temporary spousal support agreement. Your immediate needs are all that matter.
Schedule a consult to learn more about temporary spousal support orders. They can make a world of difference for people struggling financially during a divorce.
