Can You (or Your Spouse) Seek Custody and Support While Your Divorce is Pending?
Spouses often choose to live apart while their divorce is pending. While this can be in everyone’s best interests (though neither spouse should leave the marital residence without first consulting an attorney), it raises some important questions: What if one spouse cannot support himself or herself independently? If the couple has children, how will they apportion custody and visitation rights during the divorce process? Generally speaking, divorcing spouses who have separated will address these types of issues through requests for temporary orders.
Temporary Support and Custody Orders in California Divorces
In California, divorcing spouses can request temporary orders regarding spousal support, child support and child custody at any appropriate stage in the process. While it will often make sense to file requests for temporary orders at the outset of the proceedings, there is no requirement to file these requests at any particular time. The spouse who files for divorce could file temporary requests along with his or her divorce petition; the non-filing spouse could file temporary requests along with his or her response; or, either spouse could choose to file later as the divorce proceedings progress.
When filing a request for temporary support, the filing spouse must also submit income and expense declarations. These declarations must be signed under penalty of perjury. Failure to provide complete and accurate information – whether accidentally or intentionally – can have consequences, and divorcing spouses must take this part of the process just as seriously as their negotiations and court filings with respect to the final terms of their divorce.
Negotiating and Mediating Temporary Orders
Also like other aspects of a divorce, in California, divorcing spouses are encouraged to negotiate the terms of any temporary support or custody orders out of court. Temporary custody requests are also subject to mandatory mediation, and spouses may elect to mediate their temporary support requests as well. Deciding upon the best course of action and terms that are appropriate to seek in a temporary order requires the help of an experienced local divorce attorney. As in permanent support and custody matters, some of the key factors include:
Some Factors in Temporary Spousal Support Determinations
- The length of the marriage
- The standard of living enjoyed during the marriage
- The spouses’ respective incomes and earning capacities
- The spouses’ respective non-financial contributions to the marriage
- The spouses’ respective ages and health conditions
Factors in Temporary Child Support Determinations
Child support determinations are made in accordance with California’s Child Support Guidelines.
Factors in Temporary Custody Determinations
- The spouses’ respective abilities to provide for the children’s basic needs
- The spouses’ respective relationships with their children
- The spouses’ and children’s physical and mental health
- The children’s established home, school and community bonds
- The effects on the children of changing their current circumstances
Dealing with Temporary Order Requests in Court
While there are no set time limits for filing requests for temporary orders, once one party files a request and serves the request on the other, the non-filing party only has a limited amount of time to respond. If the spouses are generally on the same page about establishing temporary provisions, they may be able to agree to a timeline for negotiating or reaching an amicable resolution through mediation. If not, the responding party will need to adhere to the applicable filing deadlines in order to preserve his or her rights. In any case, once a final decision has been rendered, both spouses will need to be careful to abide by the terms of their temporary orders during the pendency of their divorce.
Contact Renkin & Associates in North County, CA
If you are considering moving out or are ready to file for divorce and would like to speak with an attorney, we encourage you to contact us for a confidential case evaluation. Richard M. Renkin is a California divorce attorney and Certified Family Law Specialist who has been representing clients in divorces for more than 30 years. To request an appointment at our offices in North County, please call 619-299-7100 or send us a message online today.
