The case of Boucher v. Boucher raises interesting issues about “without prejudice” temporary support orders, the Spousal Support Advisory Guidelines (SSAG) and the circumstances under which a court will change a temporary spousal support order.

Temporary spousal support orders are made to maintain litigants pending a trial. Orders such as these can be changed usually require a ‘material change in circumstances’. But what about a consent order made early in the litigation and clearly made “without prejudice” to either parties’ rights?

In Boucher, the parties marriage was 18 years. After separation, the parties entered into a temporary without prejudice support order of $2,000.00 per month in July 2009. Eight months later the wife returned to court requesting an increase. The wife had not anticipated large legal fees related to pending criminal charges.

At the March 2o10, an application of the SSAG placed the husband’s monthly support obligation (based on a conservative view of his income) from between $10,000.00 and $12,000.00 per month. However, Justice Hennessy resisted applying the SSAG to changing the temporary order because the wife knew the husband’s income when she entered into the July 2009 consent. Justice Hennessy made a moderate change to the temporary order by increasing the spousal support to $4,000.00 per month.

One can see the balancing of interests here — the desire to make a less intrusive order meant to maintain the parties to trial, while applying the appropriate level of support (where clearly, the wife had made an improvident agreement in July 2009). The “without prejudice” element of the July 2009 order was clearly taken by Justice Hennessy to apply to the trial proceedings and not further temporary motions. At the end of the day, and given the high likelihood that a trial judge may make a retroactive spousal support order adjusted for the appropriate amount under the SSAG, the husband’s victory at the motion may be short lived.

Had the motion to change been about child support rather than spousal support the outcome would have been much different. A motions court judge would have been required to order order full guideline child support based on the husband’s income.