There are two different types of spousal support, temporary and “permanent.” Support orders are really not permanent because support may be modified in amount based on a finding of changed circumstances. Permanent actually refers to the support amount that is awarded or agreed to at the final judgment of divorce. Temporary support is support awarded after filing the petition for divorce, but before the final judgment of divorce.
Permanent support orders are calculated based on the California Family Code section 4023 factors. This includes consideration of the earning capacity of each party, and whether that earning capacity is sufficient to maintain the “marital standard of living.” The marital standard of living means the way in which the parties lived while they were married. Did they go on vacations several times a year, or did they save up for one big vacation every two years? Did they often eat meals as fancy restaurants, or where they grocery shopping and taking preparing each meal at home? This prevents one party from supporting the lifestyle of the other party that may have never existed in the first place.
To determine earning capacity, the court considers “the marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.” (Family Code section 4320(a)(1).) For those spouses who spent a majority of the marriage not working or developing marketable skills, the court will also consider “the extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.” (Family Code section 4320(a)(2).)
The court will also consider the debts and assets of each party, the length of marriage, and the age and health of the parties. The judge will be analyzing the marriage and looking into the future for the fairest way to get both parties to become as financially independent as possible after divorce.
Temporary support, on the other hand, serves an entirely different purpose than permanent support. Therefore, the in-depth “4320 factors” are not controlling, however the court may exercise discretion should it chose to consider them.
Temporary support is determined based on the requesting party’s need and the other party’s ability to pay. This gives the court pretty broad discretion in making a temporary support amount, if any. The court will look to the parties’ accustomed marital lifestyle at the time of separation as the “benchmark” for a temporary spousal support award. This is because temporary support is more short-term, or what the court refers to as “pendente lite” (which is Latin for “awaiting litigation”). The goal for temporary spousal support is to maintain the parties’ living conditions and standards in as close to their pre-separation “status quo position” as possible pending trial.
After one party files their Petition for Dissolution, either party may file a Request for Order, requesting the court provide temporary support and custody orders to keep the family in a stable place while the parents address the many moving parts of a divorce and make a final distribution of assets. If you have questions about requesting support from your spouse or former spouse, contact Cage & Miles, LLP for a free 30-minute consultation.