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Spousal Support Advisory Guidelines:
A Draft Proposal

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The interim support setting seems an ideal situation for the use of advisory guidelines. There is a need for a quick, easily calculated amount, knowing that more precise adjustments can be made at trial. Not surprisingly, two of the early American guidelines found their origins in the assessment of interim spousal support, those in California counties and Pennsylvania. Once an income can be established for each party it is possible under the proposed formulas to generate ranges of monthly amounts with relative ease.

Traditionally, interim spousal support has been based upon a needs-and-means analysis, assessed through budgets, current and proposed expenses, etc. All of that could be avoided with the proposed formulas, apart from exceptional cases. Further, conflict between spouses at this interim stage could be significantly reduced and settlements encouraged, another benefit for the spouses and any children of the marriage.

There are some situations where there may have to be an exception for compelling financial circumstances in the interim period. When spouses separate, it is not always possible to adjust the household finances quickly. One of the spouses may have to bear large and often unmovable (at least in the short run) expenses, most likely for housing or debts. In most instances, the ranges generated by the formulas will cover these exceptional cases, but there may be some difficulties where marriages are shorter or incomes are lower or property has not yet been divided. Interim spousal support can be adjusted back to the formula amounts once a house has been sold or a spouse has moved or debts have been refinanced.

Below we offer some examples of how this exception might operate.

Example 8.1

In Example 6.1, Ted earns $80,000 gross per year and Alice makes $20,000. Alice and the two children remain in the family home after the separation. Assume that Alice has to make a large monthly mortgage payment, in the amount of $2,100 per month, as the couple had recently purchased a new home. Under the with child support formula, the range for spousal support would be $695 to $1,286 per month, on top of child support of $1,031 monthly. At the interim stage, spousal support might have to be increased beyond the upper end of the range so that Alice can continue to make the mortgage payments and still have enough money for other expenses.

Example 8.2

In a modification of Example 5.2, Karl and Beth were married for only two years. They had no children. Beth was 25 when they met and Karl was 30. When they married, Beth was a struggling artist who earned a meagre gross income of $12,000 a year giving art lessons to children. Karl is a music teacher with a gross annual income of $60,000. With Karl’s encouragement, Beth stopped working during the marriage to devote herself to her painting. They lived in a house Karl owned before the marriage, which Beth will get some share of when the property is eventually divided. Beth has gone to live with a friend, but wants to rent her own apartment.

The without child support formula is used and a two-year marriage would generate a range for quantum of 3 to 4 percent of the gross income difference of $60,000 (assessing Beth’s income as zero, which it would be at the point when interim support is claimed). The result would be support in the range of $150 to $200 per month for between one and two years.

Until Beth finds work and gets her share of the property, she is going to require a minimum of $1000 per month. Even restructuring the award to provide $400 per month for a year would not meet these needs. The interim exception could be relied upon to make an interim award in a higher amount.

There is another critical way that the advisory guidelines would apply to interim orders. Any periods of interim spousal support are to be included within the durational limits fixed by the advisory guidelines under either formula. If the computation of duration did not include the period of interim orders, there would be incentives for some parties to drag out proceedings and for others to speed them up. Further, differing periods of interim support would result in inequities amongst spouses, with some receiving support longer and others shorter, especially in cases of shorter marriages.