What is the Difference Between Permanent and Temporary Spousal Support?
Many family law litigants ask lots of questions about spousal support, or alimony. This page answers those questions. We are able to answer questions about spousal support with a high degree of certainty because we are family law experts, as designated by the State Bar of California, and we have decades upon decades of legal experience only in the area of divorce and family law. We have litigated and negotiated countless spousal support issues.
What is temporary spousal support?
Temporary alimony or spousal support is an order for support that comes during a divorce, legal separation or even an annulment case after one party has filed such a request with the court. A hearing is set after a motion document called a “Request for Order” is filed with the family court. For these financial motions, it is a requirement that each party file an Income and Expense Declaration to show their respective financial status. Temporary spousal support is usually ordered to “preserve the status quo”, meaning to try and maintain some semblance of what the parties had going during the marriage. The court is granted a significant amount of discretion, or authority, to order or deny spousal support. There are guidelines, however, as discussed below.
Temporary spousal support is also called pendente lite spousal support, which means an order made during the pendency of a case.
How is temporary spousal support calculated?
California courts are allowed to determine temporary spousal support by looking at a “guideline” calculator that most family law attorneys have in their office. We do. The court can look at the guideline calculator if they want (and every judge or commissioner does), but they are not required to look at the calculator. They are required to consider the needs of the supported party and the supporting party’s ability to pay. Those are the only two factors that the trial court judge is bound to consider. Some calculators can be found online, but we would caution against relying on those calculators. The factors that are input into the calculator are extremely important and are the subject of many litigation arguments. We can also save you some time: typically the calculator will say that if the supported spouse has little or no income, temporary alimony will be somewhere between 30-35% of the supporting spouse’s gross income. Obviously, great care has to be taken in making sure the court uses the correct figures when determining temporary support.
Can temporary spousal support be modified?
Yes. Temporary spousal support is an order that is made during the pendency of a case based on the payer’s ability to pay and the recipient’s need for money. While there are many other factors that the court can consider when making a temporary alimony order, those are the primary concerns for the court.
Generally, orders that are made a part of a judgment are only modifiable based on a showing of changed circumstances. Usually those changes have to be substantial. When a temporary order is made and one party seeks to modify the order, technically they do not have to prove that there has been any change of circumstances warranting a change.
Practically speaking, however, a party would not want to bring a motion to modify a temporary order without there being some change of circumstances. The family court judge will not be pleased with motion requesting the same information already ruled on.
Can the court use the guideline spousal support calculator to determine permanent alimony?
No. The statutory and case law is clear that the court is not permitted to review or rely upon the “guideline” spousal support calculator in determining permanent spousal support under Family Code 4320. In fact, family court judges are very careful not to allow either party to submit computer spousal support calculations for consideration because the Court of Appeals will reverse the trial court’s judgment. Many times, there is already a computer calculation for spousal support that is calculated during the pendency of the divorce case for temporary spousal support, which is part of the court record and the court is permitted to review the court file and that document for reference.
Even so, most, if not all judges look at the “guideline” formula for temporary spousal support to get an idea about what that number is and to gauge the net income of each party and to gather certain tax information. However, the court is explicitly not allowed to rely on the calculator for determining permanent spousal support.
How is permanent spousal support calculated?
Permanent spousal support is not really “calculated” since the court is not allowed to use a calculator. The court is required to list and consider each and every factor in Fam. Code 4320 to determine the amount and duration of spousal support, if any. Generally, these are the standard of living during marriage, employment, income, earning capacity, health of each party, and so forth.
In practice, permanent spousal support judgments are typically slightly lower than temporary spousal support orders.
Is there a difference between “alimony” and “spousal support”?
No. The terms are synonymous. Most states refer to spousal maintenance as spousal support, while some states still refer to the term “alimony”.
So what specifically is the difference between temporary and permanent spousal support?
The answer to this question is significant, because there are many important reasons. Some of them are as follows:
- Temporary alimony is ordered during a case, permanent alimony is ordered at the end of a case.
- Temporary spousal support can be ordered during an annulment (i.e. nullity) case, but permanent spousal support cannot be ordered in an annulment case.
- The judge is allowed to use a computer to determine temporary alimony, but is not allowed to use the calculator to determine permanent alimony.
- The only consideration necessary for temporary spousal support is the supported party’s need and the other party’s ability to pay, while there are about a dozen factors that the court must consider when ordering permanent alimony.
- Temporary spousal support is ordered after a party files a motion (i.e. RFO) for temporary support, while permanent alimony is part of a “judgment” that occurs at trial or upon agreement of the parties.
- Permanent alimony may be factored into the IRS’ “recapture” rules, which means that it may not be taxable income to the recipient and deductible to the paying spouse even though that’s what was intended. These IRS rules look at whether certain agreements between parties may have too much cross-over between alimony and property division, to put it very simply. These types of IRS rules really wouldn’t apply to temporary spousal support.
- Temporary spousal support ends until the court revises the order either by making a new order or after permanent spousal support is ordered. Permanent spousal support might not have an end date attached to it.
Why contact Wilkinson & Finkbeiner about spousal support?
Our lawyers have years and years of experience in dealing with alimony litigation. Whether you are a recipient spouse or payor spouse, it will be worth your time to contact our office. We offer a free consultation to discuss your matter and we can provide you with a litany of options, all free of charge. We know how alimony works, we know the judges in Orange County, and we know how to get results. Call or email us today.