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Q: California Family Court - Temporary Spousal Support Order ( Answered,   0 Comments )
Question  
Subject: California Family Court - Temporary Spousal Support Order
Category: Family and Home > Relationships
Asked by: chrbry-ga
List Price: $50.00
Posted: 11 May 2006 10:37 PDT
Expires: 10 Jun 2006 10:37 PDT
Question ID: 727740
I was recently ordered to pay temporary spousal support that was
backdated to the beginning of the year (less payments made to benefit
the spouse) which has resulted in me being expected to provide a
considerable amount of money as a lump sum plus high ongoing payments
until the case is settled. I am unable to obtain the lump sum amount
which is due in 5 days, and the ongoing payments will impact my
ability to meet my current overheads putting me into greater debt.
What are my options?

Request for Question Clarification by tutuzdad-ga on 11 May 2006 10:54 PDT
I'm not really sure what you mean by, "What are my options?" You don't
really seem to have many at the moment:

- You could obtain a secured loan.

- You can borrow from friends and relatives.

- You can re-mortgage.

- You can motion the court for a stay on the judgement until you can afford to pay.

- You can file for bankruptcy (which won't absolve you of this debt
but it may free up other funds and allow yoy to afford the payment).

- You can motion the court for a modified judgement.

- You can appeal your case entire (with the help of a good attorney)
which may also result in a stay or overturn of the judgement.

- You can flee the country (in which case you might be indicted and
you assets frozen or seized).

- Or you can ignore the order risk garnishment or imprisonment.

Almost all of these would require the aid of a good and clever lawyer.
Does this suffice as an answer?

tutuzdad-ga

Clarification of Question by chrbry-ga on 22 May 2006 19:54 PDT
The support oder is a temporary order for a fixed amount LESS benefits
recieved that i currently pay, so under CA family law am I able to
either motion the court for a stay on the judgement until I can afford
to pay, or motion the court for a modified judgement? My lawyer say's
no as the order is temporary. Is it possible to appeal my case given
the order is temporary? Finally, they other side has issued a
garnishment order for the gross amount without taking into account the
payments I make (auto, insurance etc.) saying I would get a refund
from the gross amount. Given that I am at risk to not get this refund
can I approach the court with my lawyer to have this overturned?
Thanks. I need the advice.
Answer  
Subject: Re: California Family Court - Temporary Spousal Support Order
Answered By: tutuzdad-ga on 23 May 2006 08:08 PDT
 
Dear chrbry-ga;

Thank you for allowing me to answer your interesting question. As
you?ve probably already noted from our disclaimer we cannot provide
legal advice in this forum. What I am sharing with you is a matter of
published law with the caveat that you should seek guidance from a
COMPETENT licensed attorney who will work with you effectively on your
case.

The typical temporary (known as ?pendente lite? in legalese) spousal
support guideline in California provides that the husband's spousal
support is to be 40% of his net monthly income, reduced by one-half of
the wife's net monthly income. Where child support is also being paid,
the guideline level of child support is calculated first. Then,
spousal support is determined.

DIVORCENET
http://www.divorcenet.com/states/california/cafaq07

Temporary Spousal Support order one party pays the other until the
divorce proceedings or permanent support orders are finalized. The
final judgment of one of both of these issues determines the amount
one must pay permanently. Temporary Support is usually only determined
by the parties' current gross incomes alone but it is important to
note that in many cases an attorney will advise a husband to pay
according to the formula used to calculate permanent support, which is
often not applicable to the requirements of temporary support. In
other words, the final amount of permanent spousal support determined
by a court, might be quite different from the amount of temporary
spousal support (and visa versa).

DIVORCENET
http://www.divorcenet.com/states/california/ca_art33

Unfortunately however, because temporary spousal support serves a
purpose entirely different from "permanent" spousal support awarded by
the judgment, the Family Code  4320 (see below) factors are not
controlling factors on the issue of temporary spousal support pending
a more permanent order. The amount of temporary spousal support lies
SOLELY within the trial court's discretion, and is not restricted by
any specific statutory circumstances. Simply put, the temporary
support is based quite broadly upon need of the ?payee? and ability of
the ?payer? to pay.

HARDING & ASSOCIATES MATRIMONIAL LAWYERS
http://www.hardinglaw.com/spousalsupport.htm

CALIFORNIA FAMILY CODE  4320
http://law.onecle.com/california/family/4320.html

Believe it or not, the amount of the temporary spousal support and is
most often determined on a computer and there is frequently some
dispute over which numbers the court should use regarding each of the
variables.. Temporary spousal support (also known as Pendent Lite
support) can be calculated with the Dissomaster and/or XSpouse
computer program. These are programs commonly used by the courts. You
can download these programs to calculate your own to see if the court
calculated your temporary support fairly:

DissoMaster Suite 2006-1
http://www.cflr.com/download/dmsuite2006.php

XSpouse
http://www.xspouse.com/

If you determine that the court erred, you may indeed have a valid
case for appeal, which may also place a stay on the earlier order.
Since the judgment is fairly recent and you will not be able to claim
that a change in circumstances is the basis for your appeal it seems
that the best course of action is to claim that the court made a
mistake (if that turns out to be the case) when calculating the amount
you are required to pay temporarily. It is important to note perhaps
that California Family Code Section 3603 (previously Civil Code
section 4357) provides that an order for temporary support "may be
modified or terminated at any time"  (In re Marriage of Murray, supra,
101 Cal.App.4th 581, 595.), thus it appears (in my unlicensed opinion)
that a temporary support order can be challenged. Again, the most
likley operative premise here (that being the case) is that the court
potenttially error in it's consideration of the facts. This will be up
to you and/or your laywer (or new lawyer) to prove - perhaps by using
the calculating programs I mentioned. Until such time you will be
obligated to follow the orders of the court.

CALIFORNIA FAMILY CODE SECTION 3603
http://law.onecle.com/california/family/3603.html

In re: Marriage of Murray
http://www.employee-leasing.org/Employee_Leasing_CaseLawDetail43550/Page8.htm

Needless to say failure to have adequate representation may cost a
party, in the long run, many thousands or even tens of thousands of
dollars. If determine that the court erred or abused it?s discretion
when considering the temporary order by not considering hardships and
your attorney seems disinterested, perhaps you should seek a second
opinion. My research, and our exchange here, will not likely produce a
fool-proof solution to your problem, but in lieu of actual legal
advice it hopefully arms you with some necessary information beyond
that which you currently have.

I hope you find that my answer exceeds your expectations. If you have
any questions about my research please post a clarification request
prior to rating the answer. Otherwise I welcome your rating and your
final comments and I look forward to working with you again in the
near future. Thank you for bringing your question to us.

Best regards;
Tutuzdad-ga ? Google Answers Researcher



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