Many people subjected to abuse by an intimate partner cannot meaningfully benefit from a protective order if the litigation does not address their immediate financial and housing needs. For this reason, attorneys should, when applicable, always plan to address child support, spousal support, and housing at the hearing on a protective order. However, once a petitioner has requested child or spousal support1  in her petition for protection from abuse, she must be prepared to prove those claims, in addition to proving the abuse. The accelerated timeline for a protective-order case will require that evidence gathering proceed as quickly as possible, to ensure appropriate evidentiary support.

• 1A request for spousal support pursuant to a DAAA petition does not require the filing of a petition for divorce. In many cases a spousal support obligation may be longer under the DAAA than it would be pursuant to a divorce petition.

One of the most frequent causes of vindictive litigation by a former abusive partner is a survivor’s request for child support. If the abusive party is not working, the child support award will often be around $100 a month or sometimes less, depending on the number of children. It is important that lawyers help clients weigh the costs and benefits of pursuing support by discussing the possibility of increased litigation and harassment, as well as the likelihood of being paid the support owed, before filing a child support claim.

Generally, lawyers should aggressively pursue support claims for survivors, but should not take for granted that the client feels safe doing so or that the benefits outweigh the risks. Some clients will decline to pursue support for reasons that include safety concerns, the belief that a former abusive partner is more likely to leave her alone if not tied to her through support obligations, or the desire to avoid continued dependence. So, although financial security is often key to victim stability, the decision to pursue support can be complicated.

For both child and spousal support, the petitioner must prove both her income and the defendant’s income.

• Proving the petitioner’s income. Plan for your client to testify about her income and employment and to introduce evidence of that income in the form of wage statements, tax returns, etc. If your client is unemployed, be prepared to argue why income should not be imputed to her. For example, if she lost her job or suffered employment instability because of the abuser’s harassment or abuse, you can argue that the abusive party should be estopped from benefiting from his own bad acts. Similarly, if the abusive party did not allow the victim to work when they were together, attorneys should argue against income imputation on grounds of both equity and fairness. And, by statute, if she is disabled or the primary caregiver of a child under the age of 5, income should not be imputed.1
• Proving the defendant’s income. The first TRO issued by the court should include an order that requires the defendant to bring proof of his income to the hearing.2  But lawyers should prepare to prove the abuser’s income without the proof that he has been ordered to produce because the defendant may fail to bring records to court, hide or lie about income, or not appear at all. Some clients will have access to old tax returns or wage statements that can prove the defendant’s income. Where you suspect that the defendant is concealing or underreporting income, La. R.S. 9:315.1.1 provides guidance on the types of evidence that can be used to establish the defendant’s actual income.3
• Self-employment. In some cases, the defendant’s income is difficult to prove, particularly for those who are self-employed.4  Some abusers will conceal income by “banking” with relatives. In those cases, refer again to La. R.S. 9:315.1.1, and plan to introduce evidence of the parties’ expenses and standard of living and the income those expenses would require.5  In some cases, abusive parties report expenses on their income and expense worksheets that exceed the earnings they claim, creating impeachment opportunities for trial. Even social media postings can provide useful evidence that the abusive party is living beyond the means they claim in court.
• Underemployment. It is not unusual for abusive partners to punish their victims and avoid support obligations by becoming voluntarily under-employed after separation.6  For purposes of calculating support, the issue of whether a party is voluntarily under-employed is a question of the obligor-party’s good faith.7  The underemployment must result from no fault or neglect of the party.8  Any action that a defendant takes to reduce his income after separation or support orders should be examined. For example, if the defendant leaves a job to return to school, or stops working overtime after years of doing so regularly, you may be able to prove under-employment.

• 1La. R.S. 9:315.11(A).
• 2Question 17 on LPOR Form 1 specifically allows a court to issue this order. See Order of Protection: Temporary Restraining Order, La. Sup. Ct.
• 3See also Brossett v. Brossett, 49,883, p. 6 (La. App. 2 Cir. 6/24/15), 195 So. 3d 471, 476. For additional discussion of imputed income, see Section 6.5 of the chapter on family law.
• 4On self-employment income for purposes of child support, see Section 6.4.2 of the chapter on family law.
• 5La. R.S. 9:315.1.1(A)(3).
• 6For additional discussion of underemployment, see Section 6.5 of the chapter on family law.
• 7Romans v. Romans, 01-587, p. 3 (La. App. 3 Cir. 10/31/01), 799 So. 2d 810, 812; see also Dugué v. Dugué, 20-CA-292, p. 8 (La. App. 5 Cir. 03/24/2021), 316 So. 3d 170, 176; Martin v. Martin, 2016-CA-0324, pp. 5–6 (La. App. 4 Cir. 11/16/2016), 204 So. 3d 717, 721; In re Wyre, 2013-1347 (La. App. 1 Cir. 12/10/14), 2014 WL 6977844.
• 8La. R.S. 9:315(C)(5)(b).

For spousal support claims, the petitioner must also show need and the other spouse’s ability to pay.

Need. An award of interim spousal support requires that the requesting spouse demonstrate need.1  Need can be shown by proving that the petitioner lacks sufficient income to maintain the standard of living that she enjoyed while residing with her spouse.2  To prove a support claim, then, the client must demonstrate her need through evidence of her income, her expenses, and her previous standard of living. “Standard of living” evidence can include testimony about the number of bedrooms in the marital home or the frequency with which the parties dined out as well as other information about the parties’ lifestyle. But if an abusive former partner intentionally deprived a dependent spouse of basic needs or a comfortable standard of living during the marriage, he cannot avoid a support obligation by arguing that she must continue living similarly.3  In most jurisdictions, the parties must prepare and submit an income and expense form in advance of court to assist the court’s determination on the petitioner’s need.

Ability to pay. The only limit on a claimant’s needs is the obligor party’s ability to pay.4  An obligor spouse has the ability to pay when his income exceeds his expenses and child support obligations.5  When the obligor does not have the ability to pay an award equal to the other partner’s needs, “interim spousal support should be fixed at a sum that will as nearly as possible be just and fair to all parties involved.”6

Support claims against defendants with limited income or resources. Do not decline to request support from an abusive defendant simply because he earns low wages. If your client’s household resources are even lower, she may still be entitled to support. The law governing temporary spousal support aims to put both parties as close as possible to the standard of living they enjoyed before the separation.7  In cases where neither party has substantial income or assets, it is useful to examine the parties’ relative financial positions. Do this by comparing their respective incomes to the federal poverty level, and then calculate how far above or below the poverty level each person’s income puts them. The court can make an award that is just and fair between two parties by awarding support in an amount that puts them at equal footing above or below the poverty level. This analysis can be particularly compelling in cases where the claimant spouse is a custodial parent whose standard of living will affect the child.

Fault. Fault is not a defense to temporary spousal support.8  Abusive partners will sometimes claim infidelity as “fault” grounds to avoid paying support.9

Reconciliation. Reconciliation applies only to actions brought in divorce. It has no effect on child support claims brought between two people who have never been married or spousal support claims between who have not filed for divorce.10  Thus, in a protective order case where support is awarded, a subsequent reconciliation has no bearing on whether support is owed for the period of reconciliation.

• 1For additional discussion, see Section 7 of the chapter on family law.
• 2Robertson v. Robertson, 10-CA-926 (La. App. 5 Cir. 4/26/11), 64 So. 3d 354 (denying husband’s request for spousal support where his request had no merit because he did not submit proof of expenses, that he was living in his father’s home without cost, and failed to prove he could not find work); Carmouche v. Carmouche, 03-CA-1106 (La. App. 5 Cir. 2/23/04), 869 So. 2d 224, 227 (upholding interim spousal support where claimant’s expenses exceeded her income even on “nominal, bare subsistence living expenses”).
• 3Brown v. Brown, 44-989-CA, p. 9 (La. App. 2 Cir. 1/27/10), 31 So. 3d 532, 538 (awarding support after finding that living conditions during the marriage were deplorable but that those living conditions alone are not indicative of the standard of living during the marriage).
• 4Kirkpatrick v. Kirkpatrick, 41,851-CA, p. 3 (La. App. 2 Cir. 1/24/07), 948 So. 2d 390, 393; Hitchens v. Hitchens, 38,339-CA, p. 2 (La. App. 2 Cir. 5/12/04), 873 So. 2d 882, 884. For additional discussion, see Section 7 of the chapter on family law.
• 5Lambert v. Lambert, 2006 2399, pp. 13–14 (La. App. 1 Cir. 3/23/07), 960 So. 2d 921, 930; Rodriguez v. Rodriguez, 2020-0171, p. 7 (La. App. 1 Cir. 11/6/20), 315 So. 3d 913, 919.
• 6Derouen v. Derouen, 04-1137, p. 5 (La. App. 3 Cir. 02/02/05), 893 So. 2d 981, 985; see Charrier v. Charrier, CA 19-917, pp. 11–12 (La. App. 3 Cir. 06/03/2020), 2020 WL 2934636, at *5.
• 7Although the term “temporary support” is used here, it closely resembles interim support in that it is designed to maintain the status quo “without unnecessary economic dislocation.” Short v. Short, 09-639, p. 9 (La. App. 5 Cir. 3/23/10), 33 So. 3d 988, 994. Interim support is a legal term of art specific to a support claim raised in a proceeding for divorce. See La. C.C. art. 111.
• 8For additional discussion, see Section 7.2 of the chapter on family law.
• 9La. C.C. art. 113.
• 10See Stanley v. Nicosia, 09-191, p. 6 (La. App. 5 Cir. 9/29/09), 19 So. 3d 56, 59 (citing McInnis v. McInnis, 38,748 (La. App. 2 Cir. 8/18/04), 880 So. 2d 240) (holding in a protective order case between two unmarried parties that subsequent reconciliation had “no bearing” on whether child support was owed for the period of reconciliation).