Family Law

Does My Soon-To-Be Ex-Spouse Have To Support Me?

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In good economic times and in bad, most couples live on a budget, making sure there's food to eat, the bills get paid and, if possible, saving a few dollars out of each paycheck. That budget usually takes a hit when a couples faces divorce, and one spouse may not be able to stand alone financially.

Sometimes, before the divorce becomes final, one spouse can get temporary spousal support, or "maintenance," from the other spouse. Learn about what the courts look at when deciding whether or not to award temporary support, how long it lasts, how an award may be enforced and how it may changed later.

What Temporary Support Is and How To Get It

Temporary spousal support is money paid to you by your soon-to-be ex during the divorce process. It's money you can use for food and other necessities and expenses. It's meant to maintain the status quo during the divorce proceeding.

You need to ask for temporary support; it's not automatically given when a divorce action is filed. You file a motion or petition for temporary support with the court where you or your spouse filed for divorce.

How the Court Decides

When you ask for temporary support, the divorce court will look to a number of factors to determine whether you should get it. These factors are usually specified in the divorce laws of your area. The main factors courts look at are:

  • Each spouse's financial conditions, especially the recipient-spouse's "need" for support
  • Whether the payor-spouse can afford to pay temporary support

The Recipient-Spouse's "Need"

You must prove to the court that you need temporary support. "Need" means more than being able to pay for basic necessities such as food and shelter. It includes the ability to maintain an appropriate lifestyle. Typically, the goal is to help you keep the standard of living enjoyed by you and your ex-spouse during the marriage.

Evidence that you have independent resources, like wages from a job, that let you maintain your pre-divorce lifestyle usually means there's no "need," and so a court won't award temporary support.

Your Spouse's Ability to Pay

The ability to pay covers more than whether your soon-to-be ex makes enough money to afford paying you temporary support. The court also looks at whether an award would make it more difficult for your spouse to get the proper food, shelter and clothing or to enjoy the pre-divorce lifestyle you shared.

When it comes to determining your spouse's income, courts usually include regular paychecks or salary, as well as things like regular overtime pay, bonuses and social security benefits.

Other Factors Courts Consider

Other factors that the courts might consider when deciding if temporary support should be awarded include:

  • Who was at fault for causing the divorce
  • Each spouse's age and health
  • Each spouse's education and employment experience

Time of Support Payments

With temporary support awards, payments usually begin on or soon after the date the court makes an award.

Although temporary support can be ordered retroactive to a past date, such as the date the divorce action was filed, the courts usually don't do so. That's because the failure to seek temporary support as quickly as possible is usually seen as proof that there's no "need" for it. So, it's important to file a motion for temporary support as soon as you know you need financial help.

Enforcing a Temporary Support Award

There are two main ways you can force your soon-to-be ex to pay court-ordered temporary spousal support:

  • Restraining orders, which are aimed at stopping or preventing your spouse from doing certain things, such as hiding or leaving the state with the marital assets, and
  • Contempt actions, in which the court has the authority to put the payor spouse in jail, impose a fine, or both, based upon the failure or refusal to obey the court's support order

Still Owed After the Divorce?

Sometimes, at the time a court enters a final divorce decree, the payor spouse still owes temporary support. In a case like this, you usually can either sue your ex-spouse and obtain a court judgment for the unpaid amount. Or, you can file an action to have your ex held in contempt.

Changing an Award

Courts usually don't change or "modify" temporary support orders. Except when the change or modification is needed to correct an error in the support order, like a mathematical error, a court will change an order only for a very good or "compelling" reason.

The most common reason for requesting a modification is "changed circumstances," such as:

  • The payor spouse's sudden and involuntary unemployment
  • An illness that makes it harder for the payor spouse to work
  • The recipient spouse becomes self-sufficient, such as when you finish college during the time temporary support was being made and then find gainful employment

Preparing for the Temporary Support Hearing

It's critical that you gather information to show the court that you in fact "need" temporary support. Some of the information you should gather includes:

  • Bank statements and cancelled checks
  • Credit card statements
  • Tax returns
  • Utility bills, like gas, electric and telephone
  • Household expenses, such as average monthly grocery, clothing and transportation expenses

Temporary To Permanent Support

Temporary support ends with the final divorce decree. There's no guarantee you'll be awarded permanent spousal support or alimony just because you were awarded temporary support. Likewise, you may get permanent support even though you never asked for or were denied temporary support.

The court will make a new decision in the final divorce decree on whether you're entitled to alimony.

Divorce is stressful enough. The added financial burden of supporting yourself may make matters much worse for you, both physically and emotionally. Take a good look at your budget and talk to your attorney to see if temporary support is an option for you.

Questions For Your Attorney

  • Can I stop paying temporary support if my soon-to-be ex starts living with someone else during the divorce?
  • Do I have to report temporary spousal support payments that I receive as income on my taxes?
  • Can I deduct temporary spousal support payments that I make on my taxes?
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