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Posted by Pat Raskob

How to Determine & Collect Spousal Support in a Divorce

How to Determine & Collect Spousal Support in a Divorce

Nobody likes paying spousal support. At least when you pay child support, you know it is for your kids, not your ex. Long-term alimony (or maintenance, spousal support, or whatever term your state uses) is less common than it used to be. But some spouses, especially those who have put their careers on hold while taking care of the home and the children, still need financial assistance, at least during a transition period during and after the divorce.

As with all divorce matters, you and your spouse can agree that one of you will pay alimony or child support and, if so, how much and for how long. But if you don't agree, a judge will decide for you. Even when you're hoping to reach an agreement, it helps to know how alimony or spousal support works so you can negotiate wisely.

Who receives alimony?

Before judges can determine the amount of child support, they must determine who is eligible to receive payments and what type of support is appropriate.

Although some still believe that only wives receive alimony, entitlement to this financial assistance is independent of gender. It doesn't even depend on who filed for divorce. Either spouse can ask for alimony in the Petition (or complaint) for divorce or in the response (answer) to the original divorce documents. Therefore, if the couple does not agree on the matter, the judge must decide whether or not to accept this request.

In the vast majority of US states, eligibility for child support is based on:

  • Need - if one of the spouses needs financial support and

  • Ability to pay: whether the other spouse can afford this support.

But some states have very specific and strict requirements that must be met before a judge can award child support/alimony/spousal support. Additionally, qualification requirements are often different for different types of spousal support, such as:

  • Temporary alimony after the start of the divorce proceedings but before the judge pronounces the final judgment or decree of the divorce.

  • Rehabilitative spousal support (sometimes called transitional alimony, short-term alimony, or similar terms) aims to help the spouse become independent and

  • "Permanent" alimony or support in the rare cases where a spouse cannot be expected to become self-sufficient and therefore requires long-term periodic payments.

When do judges use a formula to calculate child support?

Unlike child support orders, which are based on detailed guidelines for calculating the amount of support, the amount of spousal support is generally based on what the judge thinks is fair in the circumstances (known in legalese as "judge's discretion"). So while you can find websites promoting alimony calculators, very few states use these formulas.

New York, Illinois, and Colorado are notable exceptions to this rule. In these states, child support is usually calculated by subtracting a percentage of the paying spouse's income from a percentage of the recipient's income. But even in those states, judges can choose to deviate from the guidelines when they believe the calculated amount would be unfair or inappropriate.

Using formulas is somewhat more common in calculating temporary alimony as a matter of state law (as in Pennsylvania) and court policy in some counties. But where state law does not provide guidance, judges will only use these formulas as a starting point. They will still need to comply with legal requirements to accommodate the particular circumstances of a couple's marriage.

What judges consider when determining Spousal Support

In most states, laws require judges to consider certain factors when deciding how much spousal support to award in a divorce. Generally, they must justify their reasons for their orders. Other than that, however, judges are generally free to decide what is appropriate in each particular case.

The specific factors judges must consider vary from state to state but generally include:

  • The needs of both spouses

  • Each spouse's ability to support themselves, based on their education, work history, age, health status, and other factors

  • The other financial resources of both spouses, including own property, a property they have received or will receive under the division of property in the event of divorce, expected future property, and debts

  • If the dependent spouse cannot work outside the home due to the needs of one or more children who live with that spouse

  • Each spouse's contributions to the marriage, including childcare, household chores, and efforts to promote the other spouse's education, career, and future earning capacity

  • If the supported spouse has been out of the labor market or has lost professional opportunities to care for the couple's children, their household or both

  • The tax consequences of child support payments under federal law (which eliminated child support deductions for divorces finalized or amended child support claims after 2018) and state law (which may not follow federal rules)

  • Length of marriage (although this is another factor in deciding how long alimony will last) 

  • Any history of domestic violence.

In some states, judges consider spousal adultery or other faults when making spousal support decisions.

How do judges determine a spouse's needs?

When judges consider the needs of both spouses, state law often explains that those needs are based on a couple's standard of living during the marriage (before their separation). In practice, many divorced spouses find it difficult to maintain this standard of living immediately after divorce, given the added cost of maintaining two separate homes, especially when children are involved.

This is why most judges focus on the reasonable needs of the spouses. And some state laws strictly define "need" as the minimum amount reasonably necessary to cover basic living expenses. Of course, it is up to each judge to determine what is reasonable in the circumstances. And in cases where there isn't enough money, judges often look for a way to get divorced spouses to share the financial pain fairly.

Example: Imagine that a spouse filing for divorce earns $5,000 a month. His wife stays home with four young children and no income. According to his state formula, she is entitled to $1,650 monthly child support. Suppose she demonstrates that her minimum needs (including rent or housing) is $2,300 per month. In that case, if the judge is satisfied that her budget is solid, the judge will conclude that she needs $650 in spousal support ($2,300 minus $1,650) to make up the difference. And suppose all other considerations support that amount (including the spouse's ability to pay). In that case, the judge may award that amount in alimony, at least until the children have grown and the wife can return to work and begin to support herself.

What is a spouse's earning capacity?

As we have seen, states generally require judges to consider the earning potential of both spouses. This means that a judge will look at current income and what the spouses could reasonably earn, given their education, training, experience, job skills, and local demand for those skills.

When a spouse voluntarily earns below potential, the judge can "impute" income to that spouse. For example, let's say you're the highest-paid spouse in your marriage, earning $200,000 a year as a lawyer. But after you got separated from your spouse, you quit your job to become a sculptor and earn less than $30,000 a year. The judge can order you to pay child support based on your earning capacity rather than your actual income.

However, suppose you have a compelling reason to move to a lower-paying job, for example, because work-related stress has caused medical and psychological harm. In that case, you may be able to provide evidence to convince a judge not to base the alimony on your old salary. However, expect a fight from your spouse or ex.

The supporting spouse's current and future earning potential also comes into play when the courts determine the amount of alimony. As part of rehabilitative support, judges often order a professional assessment with a specialist who will examine how much that spouse can currently earn and what steps need to be taken to become self-sufficient.

How long does alimony last?

By its very nature, temporary spousal support only lasts until the divorce is final. Some states also limit certain types of spousal support, such as a two-year limit on "make-up-the-gap" child support in Florida. And all alimony ends when the dependent spouse remarries (or, in some states, begins living with a non-marital partner).

Otherwise, states have different rules for determining the duration of spousal support payments. Judges often base this decision on the same considerations when determining the amount of maintenance. Other times, state laws have separate rules for the duration of alimony.

Getting help with Alimony

Mediation may be a good option if you want to avoid the expense, stress, and time of a divorce trial if you and your spouse are having trouble resolving spousal support. When you reach a full settlement before you start divorce proceedings, you can file for divorce by mutual consent, which means you can probably get a divorce without a lawyer.



Pat Raskob
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