Family Law Bench Book

Introduction

The general goal of temporary support is equitable distribution of parties' present incomes given their respective financial responsibilities for family expenses during the pendency of the case. Temporary orders should preserve status quo at time of filing.

Permanent support is equitable distribution of the parties' future incomes given their respective financial conditions. By the time of the FOC referee hearing or trial, the claimant should have employment or education plans.

1. Ex Parte Orders.
   
   
1. Should preserve the status quo:
1. If parties are living together; or
2. If separated with an established bill paying arrangement.
2. Factors to consider:
1. Disparity in incomes.
2. Temporary possession of children and child support order.
3. If the parties are living together and a party alleges facts to support the fear this may be changed.
4. Misrepresentation of the status quo may result in sanctions.
3. Order should include language that it becomes a temporary order of the Court from the date of service until further order of the Court.
   
   
2. Temporary spousal support.

May be requested by motion at any time prior to trial.

1. The right to temporary support begins with the filing and service of motion.
2. Attorney requesting support should provide the Court and other side with recent FOC spousal support guideline printout.
3. Affidavit alleging sufficient facts including:
1. length of marriage
2. income of claimant
3. education of the claimant
4. income of payer (difference between parties’ incomes)
5. ability of parties to work
6. who pays which bills
7. debt load of parties--who pays and how much
8. possession of minor children
9. child support obligation under the guidelines
10. health of parties
4. Order should include referral to FOC Evaluator or FOC Referee.
1. Refer to Evaluator unless the case includes any of the following, in which case, refer to Referee:
1. self-employed party
2. income imputation issues
3. any significant property disputes
2. If a referral is made to Referee and there are issues of custody/parenting time, an Evaluator interview with the minor children should be scheduled before the Referee Hearing.
   
   
3. Permanent spousal support.
   
   
1. Consider FOC recommendation for accuracy and review parties' objections for relevancy. Consider additional evidence:
1. Was the income used accurate?
2. If income is imputed, is it reasonable?
3. How great is the disparity?
4. Age: date of filing + six months.
5. Length of marriage: date of filing + six months.
6. Education: was the level selected appropriate to the facts?
7. Number of children born during the marriage.
2. When evaluating the FOC guideline recommendation the trier of fact will look at the "bottom line": does the recommendation make sense given the parties’ responsibilities for children, the labor market, and other family obligations.
1. When a family of 3 splits into 2 person + 1 person households, the 2 person household needs about 57% of total family income to retain the same lifestyle as the 1 person household.
2. When a family of 4 splits into 3 person + 1 person households, the 3 person household needs about 62.5% of total family income to retain the same lifestyle as the 1 person household.
3. The lower the total family income, the more important the percentages in 1, and 2, above, become.
4. If incomes are high enough this equalization of lifestyles is less crucial.
5. The "mail box" principle may apply: to wit, it is harder to get up in the morning and work a 12 hour shift at Ford Motor than it is to walk to the mail box and pick up a check. If recipient is also working 40 hours, the "mail box" principle doesn't apply.
3. When guidelines specify spousal support for a term of years, a reservation after that term should be considered when:
1. health issues are present.
2. claimant’s ability to succeed in labor market is uncertain.
3. any long term marriage, not otherwise qualifying for permanent alimony
4. age of claimant is relevant