Alimony and Spousal Support Determination…Part 1

The purpose of spousal support is the attempt to maintain the standard of living that spouses had while they were married. If one of the parties was the primary breadwinner during the marriage or if the disparity of income is significant between the spouses, then there likely will be a duty of spousal support.

Either spouse may qualify for spousal support depending upon several factors. The key elements of spousal support are the amount, duration, modifiability or non-modifiability. It may also be paid in one lump sum upfront or in a series of payments if both parties stipulate outside of court. A judge in California and in many other states will not order a lump sum payment.

While a working ex-spouse may have income, the income may be insufficient to meet their needs. Courts will often require the recipient spouse to return to work even if they have been out of the workforce for a while or have young children and was a stay-at-home mom during the marriage. You should research the laws in your state to see what the guidelines are regarding a working ex-spouse and how it impacts spousal support.

There are several different types of spousal support:

1.    Permanent Support

Spousal support will continue “indefinitely” until there is a change of circumstance for one of the spouses. It is frequently awarded to a spouse who has been a full-time parent and may have traded a career for stay-at-home duties. It is especially relevant if the person is older and does not have marketable skills to become self-sufficient and that would allow the recipient spouse to achieve the standard of living enjoyed during the marriage.

2.    Term Support

Spousal support is paid for a pre-determined and specified amount of time. Term support is awarded for shorter duration marriages because it is likely that the recipient spouse may be able to become more self-sufficient and maintain a reasonable standard of living closer to that realized during the marriage.

3.    Temporary Support

Upon separation and during the pendency of the divorce, often there is a temporary support payment to allow the lower-earning spouse to be supported. If you are entitled to spousal support it starts as soon as you separate unless the state’s laws do not allow for retroactive support.

4.    Rehabilitative Support

This type of support is paid for a predefined amount of time usually to allow the recipient spouse to return to school or training to get a degree or certification to become financially self-sufficient.

There are many reasons that spousal support may be modified which in most jurisdictions requires a change of circumstances:

·      The death of either spouse

 ·      The retirement of the payor spouse. Usually in this instance, the support is modified to align with a lower income.

 ·      The marriage of the recipient spouse.

 ·      The romantic cohabitation of the recipient spouse.

 ·      When the children reach the age of maturity, which in California and Michigan is age 18.

 ·      The payor loses a job or has a substantial drop in income. The courts may order the payor to seek work.

       The payor becomes disabled or ill.

 ·      The payor has a financial emergency.

A modification can only take place when there is a substantial change in income or need. This is typically a job loss or illness or if a spouse has relocated to an area where the cost of loving is much lower.  It may be that the paying spouse received a promotion or assumed a new job commensurate with a significant increase in pay. These circumstances may be significant enough to warrant either an upward or downward modification of support.

To request a change, the person seeking the increase should petition the court to ask for a modification based on the catalyst that caused the change. This petition must be served on the other party and if there is a disagreement and the parties cannot come to an arrangement on their own, a hearing will be held or a judge may order mediation to help the couple reach an agreement.

 If mediation fails, then a trial will be held.

 The following factors are considered when determining whether or not spousal support will be ordered by the court and the extent and duration of the support in some jurisdictions. In other states, such as California, long term marriages of more than 10 years do not receive a termination date for the duration of support. It is always ordered as indefinite and the parties may return to request modification of amount or length in the future based on changes of circumstances.

·      The length of the marriage

 ·      The financial needs of the requesting spouse

 ·      The payor spouse’s ability to pay

 ·      The income available to either spouse from invested assets, either separate property assets or assets divided as part of the community division

 ·      What each spouse actually earns and what their earning capacity might be, including educational levels, vocational skills and the marketability and employability of the spouse

 ·      How long the requesting spouse has been out of the workforce

 ·      The costs and amount of time it would take the requesting spouse to receive sufficient training or education to find appropriate employment

 ·      The lifestyle enjoyed during the marriage and the likelihood that each party can maintain a reasonably comparable standard of living

 ·      The parenting responsibilities of each spouse (eg. If there is a child with special needs causing an impediment to that spouse being able to return to the workforce)

 ·      The history of the monetary and non-monetary contributions of each spouse, including the care and education of any children and whether the spouse interrupted their career or education to provide for a quality home life

 ·      Any other factors that a judge deems relevant

 This article does NOT constitute legal advice and is for general information purposes ONLY. Prior to making any decisions, seek legal counsel from a licensed attorney.