You and your spouse might not be able to agree on all of the temporary orders. Support may be the final obstacle, even though the courts have tried to make this as objective as possible by issuing temporary support schedules. As a result of these standardized schedules based on gross or net income, the predictability of the amount of the temporary order in your case is nearly one hundred percent. However, support is an emotional and a money issue, and your spouse may be disagreeable. Let’s take a look at what is involved.
Assuming that you haven’t been offered reasonable support, prepare the necessary papers to set the court hearing without delay. The decision to go to court for a temporary support order has been made for you, in effect, if your spouse offers nothing.
If the support offered to you seems low, review the support schedule with your attorney to make sure that you are calculating the presumed support correctly for your case. The amounts for temporary child and spousal support from the schedules are nearly always the amount ordered for temporary support.
Check the withholding claimed by your spouse to see if it is correct, and that only mandatory deductions are being taken to arrive at net income. For child support, adjust the presumed support from the schedule for childcare required to work, and for visitation above or below the ten to thirty percent range. If it appears you would do significantly better in court, your spouse must be disregarding his attorney’s advice. You simply have no alternative but to go to court. That’s why the court is there—to prevent one spouse from having veto power over the other.
The Scouts’ approach, be prepared, is applicable to temporary support hearings. Your responsibility is to present a twelve-month average of your spouse’s income. Don’t miss a thing because this is the single most important number. The documentation that you must review in advance and submit to the court as appropriate includes your spouse’s:
1. Detailed earnings statements for the last three months;
2. Forms W-2, Wage and Tax Statements, for the past two years;
3. Forms W-2P, Statement of Recipients of Annuities, Pensions or Retired Pay, for the past two years;
4. Forms 1099, all types, showing dividends, interest and securities sales, for the past two years;
5. Schedule of all child or spousal support payments being made or received;
6. All unemployment and Social Security benefits received;
7. Records of all payments made into profit-sharing, annuity, IRA, SEP-IRA, Roth IRA, 401(k) or Keogh plan;
8. All business-related travel and entertainment expenses;
9. Profit and loss statement of any unincorporated business owned;
10. All Schedule K-1’s from partnerships of which your spouse is a partner, trusts or estates of which a beneficiary and S corporations of which a stockholder;
11. Year-to-date records of profits or losses on securities or other property sales;
12. Copies of all settlement statements for real estate purchases or sales within the past two years;
13. Copy of the lender’s statement of interest and taxes for all mortgaged real estate owned;
14. Records of all other income the past year, such as prizes, royalties, rents and lottery winnings;
15. A list of all investment and employment-related expenses, such as deposit box rentals, dues, tools and supplies;
16. A list of transportation and away-from-home work expenses, such as a diary;
17. All current bank, brokerage, savings and loan and other financial institution account records;
18. Amount and details of interest paid;
19. Amount and details of taxes paid; and
20. Complete record of medical and dental expenses, including insurance premiums.
Your state may provide for the limited discovery of federal tax returns at support hearings. However, this is not likely to be of any use to you at this first, pre-judgment hearing seeking temporary support because you have just separated: your recent returns were presumably joint.
The list above is meant to be complete. On the other hand, you may feel confident that there’s no point in requesting information in certain categories, and that is your option. If you have been married for more than just a few years, or your spouse’s finances are complex, at least ask for documentation of all 20 categories so you’ll find out if there is something in each category.
If your spouse fails to pay support on time, or at all, you can ask to have your local Child Support Enforcement Officer collect it for you and enforce the order. There is no charge other than a few dollars for bookkeeping.
Contested hearings for temporary support can be as complex as for permanent support. Refer to Chapter Fourteen, particularly Income, Need and Child Support, the second, fourth and twelfth sections, respectively, if you need a more expansive treatment of support at this point.