I understand how the temporary order was put together. I do not agree with it at all because my wife could work but chooses not to. What happens when we go to trial? Will the judge simply use the temporary order or will I have any opportunity to talk about what she could do if she simply got out there and tried?

How about having a vocational assessment done as to what work she would be qualified and what level of pay she could earn. It will cost you money, so you need to weigh up how much it costs to have this done compared to how much your support will go down if it is successful.

I say IF, because it still could be challenged in court and the Judge still has to agree with it

A vocational examination and evaluation is a great way of introducing evidence of what a person's earning capacity is.
The court can not use a simple calculation such as is done by a computer program to set spousal support at the time of trial. The temporary support is intended to maintain the status quo so it lends itself to a formula approach just by its very purpose. At the end of the case the policy is different and the factors that the court must consider in establishing an award of spousal support are set forth in Family Code, Section 4320.


4320. In ordering spousal support under this part, the court shall
consider all of the following circumstances:
(a) The extent to which the earning capacity of each party is
sufficient to maintain the standard of living established during the
marriage, taking into account all of the following:
(1) The marketable skills of the supported party; the job market
for those skills; the time and expenses required for the supported
party to acquire the appropriate education or training to develop
those skills; and the possible need for retraining or education to
acquire other, more marketable skills or employment.
(2) The extent to which the supported party's present or future
earning capacity is impaired by periods of unemployment that were
incurred during the marriage to permit the supported party to devote
time to domestic duties.
(b) The extent to which the supported party contributed to the
attainment of an education, training, a career position, or a license
by the supporting party.
© The ability of the supporting party to pay spousal support,
taking into account the supporting party's earning capacity, earned
and unearned income, assets, and standard of living.
(d) The needs of each party based on the standard of living
established during the marriage.
(e) The obligations and assets, including the separate property,
of each party.
(f) The duration of the marriage.
(g) The ability of the supported party to engage in gainful
employment without unduly interfering with the interests of dependent
children in the custody of the party.
(h) The age and health of the parties.
(i) Documented evidence of any history of domestic violence, as
defined in Section 6211, between the parties, including, but not
limited to, consideration of emotional distress resulting from
domestic violence perpetrated against the supported party by the
supporting party, and consideration of any history of violence
against the supporting party by the supported party.
(j) The immediate and specific tax consequences to each party.
(k) The balance of the hardships to each party.
(l) The goal that the supported party shall be self-supporting
within a reasonable period of time. Except in the case of a marriage
of long duration as described in Section 4336, a "reasonable period
of time" for purposes of this section generally shall be one-half the
length of the marriage. However, nothing in this section is
intended to limit the court's discretion to order support for a
greater or lesser length of time, based on any of the other factors
listed in this section, Section 4336, and the circumstances of the
parties.
(m) The criminal conviction of an abusive spouse shall be
considered in making a reduction or elimination of a spousal support
award in accordance with Section 4325.
(n) Any other factors the court determines are just and equitable.

this is the first time i have done this, not sure i am typing in the correct area. my question on spousal support. i have been married to 30 years.the last three years of our marriage my husband made it with a successful business, then he decided he wanted a divorce. we dont have any property to divide. he has lied on his last 2 years of self employment tax returns. showing he made the same amount of money as me the wife. but he made alot more. i can prove it with receipts and photographs of items he sold in his business to prove his didnt really make his small amount of money hes pretending hes made. how do i and what should i expect from the judge with that type of proof. if they just go by the income tax returns, i dont have a chance for money i deserve. should i ask for a lump sum based on the business. or because of the economy, and it is almost dead right now income wise for my husband, should i ask for a later date to go back to court to ask for money? i am struggling, cant pay my bills with only my income, and he does have 2 brand new expensive sport cars in his garage in his beautiful house hes renting.[QUOTE][quote=Jim Reape,Oct 22 2008, 11:06 AM]
A vocational examination and evaluation is a great way of introducing evidence of what a person's earning capacity is.
The court can not use a simple calculation such as is done by a computer program to set spousal support at the time of trial. The temporary support is intended to maintain the status quo so it lends itself to a formula approach just by its very purpose. At the end of the case the policy is different and the factors that the court must consider in establishing an award of spousal support are set forth in Family Code, Section 4320.
4320. In ordering spousal support under this part, the court shall
consider all of the following circumstances:
(a) The extent to which the earning capacity of each party is
sufficient to maintain the standard of living established during the
marriage, taking into account all of the following:
(1) The marketable skills of the supported party; the job market
for those skills; the time and expenses required for the supported
party to acquire the appropriate education or training to develop
those skills; and the possible need for retraining or education to
acquire other, more marketable skills or employment.
(2) The extent to which the supported party's present or future
earning capacity is impaired by periods of unemployment that were
incurred during the marriage to permit the supported party to devote
time to domestic duties.
( The extent to which the supported party contributed to the
attainment of an education, training, a career position, or a license
by the supporting party.
© The ability of the supporting party to pay spousal support,
taking into account the supporting party's earning capacity, earned
and unearned income, assets, and standard of living.
(d) The needs of each party based on the standard of living
established during the marriage.
(e) The obligations and assets, including the separate property,
of each party.
(f) The duration of the marriage.
(g) The ability of the supported party to engage in gainful
employment without unduly interfering with the interests of dependent
children in the custody of the party.
(h) The age and health of the parties.
(i) Documented evidence of any history of domestic violence, as
defined in Section 6211, between the parties, including, but not
limited to, consideration of emotional distress resulting from
domestic violence perpetrated against the supported party by the
supporting party, and consideration of any history of violence
against the supporting party by the supported party.
(j) The immediate and specific tax consequences to each party.
(k) The balance of the hardships to each party.
(l) The goal that the supported party shall be self-supporting
within a reasonable period of time. Except in the case of a marriage
of long duration as described in Section 4336, a "reasonable period
of time" for purposes of this section generally shall be one-half the
length of the marriage. However, nothing in this section is
intended to limit the court's discretion to order support for a
greater or lesser length of time, based on any of the other factors
listed in this section, Section 4336, and the circumstances of the
parties.
(m) The criminal conviction of an abusive spouse shall be
considered in making a reduction or elimination of a spousal support
award in accordance with Section 4325.
(n) Any other factors the court determines are just and equitable.

[/quote]

In a situation like yours you should engage a forensic accountant to come up with his cash flow available for support.
While he may have made more than the tax returns showed in the past I am concerned about your statement that it is "...almost dead right now income wise for my husband." Just because he made more in the past does not show that he currently or in the foreseeable future is or will be making the same.
With the purchase of the expensive cars he likely obtained financing and filled out loan applications. You should subpoena those.
Regarding the pictures to show lifestyle, that won't work. Read Marriage of Loh were a party relied on just that pictures of an affluent lifestyle... since the pictures didn't really prove anything the court only had tax returns to rely on.

mnardi may also want to consider the exposure to having possibly signed off on those returns (presuming joint returns were filed) she knew were not accurate. How do you reconcile hiring a forensic to determine his cash flow because he lied....if on the other hand you may need to contend that the returns you signed were accurate?

Other than having to endure a potential difficult cross examination (if someone is really advocating the returns are accurate) and the possibility of a whistle blower tipping off the IRS and FTB... returns that are less than accurate are not uncommon in Family Law cases and the court will accept the more reliable evidence....even though Marriage of Loh referred to the returns as the best evidence of income and that they were presumptively correct.

I meant from the perspective of the IRS / FTB. Seems like it would be a dangerous gamble (seeking the truth for support purposes after having skirted around the tax obligation issue).....unless she'd be seeking innocent spouse relief.

Many do seek innocent spouse relief but how innocent are they when they are the ones first alerting anyone to the "fact" that the information on the return is inaccurate?

Precisely my point.