When divorce terminates a long term marriage, spousal support is used in its traditional sense as support and maintenance of a former spouse who is unable to support himself or herself at a comparable standard of living due to years of financial dependence. The longer the marriage; the older the recipient; the less able the recipient is to support himself or herself due to lack of education, job skills, or on the job experience; the more likely spousal support is to be rewarded.
Permanent or lifetime spousal support has become the exception rather than the rule. Even when lifetime or permanent support is awarded, it often ends on retirement when the parties begin sharing in pension benefits.
Case law establishes that courts will apply 11 factors in determining whether spousal support should be awarded and the amount of such an award. They are: 1) the parties’ past relations and conduct, 2) the length of the marriage, 3) the parties’ ability to work, 4) the source and amount of property awarded to the parties, 5) the parties’ ages, 6) the ability to pay spousal support 7) the parties’ present situation, 8) the parties’ needs, 9) the parties’ health 10) the prior standard of living of the parties and whether the parties support others, and 11) general principals of equity.
The trial court must consider all relevant factors. While fault may be considered, the court must not assign disproportionate weight to that issue. The court must make findings on each factor relevant to a particular claim, and the record must show the basis for a decision on spousal support.
Spousal support awards are within the trial court’s discretion and should be based on what is fair and reasonable under the circumstances of each case.
Spousal support, like child support is generally modifiable due to a change in circumstances unless the parties agree that it be non-modifiable. Spousal support is only one part of the economic puzzle and cannot be isolated from other aspects of the divorce settlement. It must be taken into account as part of a package that includes property division and, when there are minor children, child support, as well as the numerous other factors involved in each divorce case.
Spousal support is also popular as an income shifting device for federal income tax purposes. Spousal support is generally taxable to the recipient and deductable to the payer. However, various tax requirements must be met and your attorney should take care to comply with them.
When negotiating spousal support issues, your attorney must remember that there are no formulas for spousal support as there are for child support. Spousal support guidelines have been developed and are used by attorneys, judges, and Friend of the Court personnel in some counties, for example in Washtenaw County. Guidelines for spousal support can help prevent injustice by assuring more uniform and predictable spousal support orders. Using guidelines may be helpful, but they might not fit every circumstance. Spousal support must be decided on a case by case basis, taking into account the 11 factors above. In particular, the guidelines fail to consider factors such as the health of the parties, past relations and conduct, the source and amount of the property awarded, prior standard of living, and general principles of equity.
The probability of obtaining spousal support or not having to pay spousal support should be discussed with each client at the initial consultation for a potential divorce. A client needs a realistic idea of what to expect regarding spousal support, as well as property division and child support, so that he or she has a nearly complete idea of what to expect.
How your attorney relates to you, explains spousal support issues and educates you with regard to the relevancy of spousal support in a particular case can be crucial, Many clients come in with a demand that under no circumstances will they pay spousal support. They consider it painful to support a spouse they no longer want to be with. But, sometimes economic considerations prevail. A client who wants to fight spousal support must be prepared to give up other economic considerations, like a larger part of the property.
To discuss spousal support and other divorce considerations, call Attorney Barton W. Morris for a confidential consultation at 248-541-2600.