- Legal EditorHenry Dahut, J.D.
Henry Dahut, J.D.
Attorney - Legal Publisher - Educator
Henry Dahut is a licensed California trial attorney. Over the course of his 30-plus years practicing law, Henry has represented and counseled countless clients in legal trouble.
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Spousal support, sometimes called spousal maintenance or alimony, will be stated in the court’s dissolution order. One spouse will be ordered to pay the other support. This aims to ensure the non-paying spouse can maintain a quality of life similar to when the partners were married.
Determining Spousal Support
Spousal support still exists in some form in almost every state. However, unlike the strict and specific state laws governing child support orders, the courts are given much more discretion in determining alimony.
Spousal Support Not Automatically Ordered
Spousal support is not automatic. The court will decide whether spousal support should be awarded, for how long spousal support should be awarded, and how much spousal support should be awarded.
Even if spousal support payments are negotiated in a divorce settlement, the court must approve the settlement to ensure it is fair and equitable.
Judge Determines Variable Factors
The Judge considers the following factors in determining spousal support:
- The age, physical, and emotional health of both spouses
- The current and prior financial condition of both spouses.
- The amount of education or training the receiving spouse would need to support themself.
- Their standard of living throughout the marriage.
- The duration of the marriage.
- The financial ability to pay and the financial need of each spouse.
Threshold Issue in Obtaining Spousal Support
Should you qualify for spousal support, it will be based on various factors the court will consider.
The Two Threshold Considerations are:
- Whether you have a financial need for spousal support.
- Whether your spouse has the ability to pay you.
The exact information courts require to determine whether you are entitled to spousal support depends on what factors your court considers.
Factors Considered in Determining Spousal Support
Current Financial Condition of Parties.
Generally, you must show the court your income and expenses. You should gather your bills to show the court your living expenses. Be sure to factor in things like your groceries and personal care expenses.
You should also provide the court with as much information about your spouse’s finances as possible. If your spouse has excess income while you have a monthly deficit, you are more likely to be awarded spousal support.
The court order will consider the gross income of both parties to determine if one spouse has sufficient income to support the other spouse without compromising their financial stability.
Length of Marriage
Most states consider the length of the marriage to determine the duration and amount of spousal support.
Courts generally consider whether the marriage was short—or long-term. While courts generally do not award lifetime spousal support for a long-term marriage, usually more than 20 years in most states, the lesser-earning spouse may be awarded spousal support for a more extended period of time.
If your marriage is long-term and your spouse’s ability to meet financial needs exceeds yours, you may be entitled to spousal support. This will depend on your ability to meet your needs in the future and, therefore, be entitled to long-term or even permanent support.
Health Condition and Age
Suppose you have been injured in an accident and now have a disabling medical condition that impacts your ability to work or requires significant medical treatment. In that case, you may be entitled to spousal support. Depending on your circumstances, the court can award spousal support for a limited time.
However, suppose you have an ongoing medical condition that prevents employment or are of an age when it is unreasonable to expect you to return to work. In that case, the court may award you permanent spousal support.
The court might also consider whether you or your spouse are near retirement age and how retirement will affect your financial needs and resources.
Spouses Education and Employability
Suppose there is a disparity in your and your spouse’s level of education. In that case, the court may consider this in awarding spousal support. For example, if your spouse has a professional degree that enables them to earn a more significant income while you do not have such a degree or future earning power, a court may order that your spouse pay you spousal support.
Stay-At-Home Parent
If you have been unemployed as a stay-at-home parent or stay-at-home spouse because you have served as the parent who primarily handles child-rearing duties, the court may award you spousal support.
The award may be limited to what the court believes necessary to allow you to re-enter the workforce full-time or increase your education or experience.
Bad Behavior While Married
In most states, a spouse’s bad behavior (such as an affair) does not affect spousal support. However, if a spouse’s abusive behavior, such as engaging in domestic violence or has prevented the requesting spouse from obtaining necessary education or employment, that behavior might affect an award of spousal support because it has affected the earning power of the requesting spouse.
Frequency of Support Payments
Spousal maintenance payments may be ordered in monthly payments. Still, it may also be awarded as a larger one-time payment, depending on the respective financial condition of the parties.
In some cases, a court may award a lump sum alimony payment or reimbursement alimony, ensuring that a former spouse receives financial support that accounts for past contributions or expenses, using marital property or other sufficient property as the basis for the settlement.
Spousal Support Dependent On Jurisdiction
In divorce cases involving spousal support, each state enacts and enforces its laws, varying considerably depending on the jurisdiction where the parties reside.
Irrespective of state jurisdiction, all courts take their support orders very seriously and expect the paying party to fully comply with the court’s orders.
All support orders are backed by criminal and civil enforcement authorities, and violating such orders is punishable by fines, jail, or both.
Uniform Marriage and Divorce Act (UMFA)
States selectively adopt the UMFA rules
Concerning alimony, most states have adopted many of its support provisions from the Uniform Marriage and Divorce Act. Under this act, it is recommended that family court judges consider numerous factors when determining alimony awards.
The UMFA Factors Commonly Adopted by States
- The age and occupation of spouses
- The physical condition of spouses
- The Emotional well-being of spouses
- The financial stability of spouses
- The former versus current living standard
- The primary caretaker of the children
- The financial ability of the paying spouse to support the recipient and still be able to support themself.
While determining alimony is almost always left to the court’s broad discretion, once the court issues its support orders, they are strictly enforced under the court’s contempt powers.
Non-Compliance With Spousal Support Order
Contempt of Court
Suppose the person ordered to pay alimony does not comply with the court’s order. The non-paying party may be found in contempt can include both civil and criminal penalties – including jail, which is extremely rare.
Declaring Spousal Income
To ensure the truth and accuracy of each spouse’s financial condition, they will likely be required to fill out individual income declarations.
These are sworn declarations of all income and expenses and are made under penalty of perjury.
Although rare, the court may inquire into all income-producing sources listed in their respective income declaration in heavily contested divorces.
The court may inquire about income from rental property, pensions, social security, and stock interest earned from investments. It will also consider dividends and whether either spouse is collecting unemployment benefits.
Spousal Support While Still Married
Spouses must support each other while married, but sometimes complex legal issues arise. What is clear is that each spouse has the same legal obligation to support the other, regardless of gender.
Separate Property Used for Spousal Support
Non-marital or separate property is commonly used to satisfy spousal support payments. The property you or your spouse earned during the marriage is generally treated as marital property.
When determining financial support, courts often evaluate whether the marital property is sufficient to provide for both parties. This can influence whether one spouse receives a one-time payment known as lump sum alimony.
Determining the property’s status as separate property depends on whether you or your spouse:
- Owned the property before the marriage or
- Received or received the property individually as a gift or through inheritance.
If the spouses have both marital and non-marital property, the marital property must be used first for support.
Spousal Support Limits
By state statute, there are limits to the amount of alimony one spouse may be ordered to pay the other. The support obligation covers only “necessaries of life.” But these may vary considerably, depending upon one’s standard of living.
Suppose there are significant disagreements about what you should spend money on. In that case, discussing these problems with a professional, such as a marriage counselor, is reasonable. You may wish to mediate the marital dispute if the disagreements turn legal.
In cases where long-term support isn’t warranted, the court may opt for temporary support or temporary alimony, allowing one spouse time to gain financial independence.
Impact On Living Apart
Suppose you and your spouse live apart but have not finalized the divorce. In most states, you will still be obligated to support the other, depending on how the court might define “necessities.”
Additionally, courts may consider any retirement benefits that either spouse is entitled to when determining alimony payments, which could affect both the amount and duration of spousal support awarded.
Permanent Spousal Support
Generally, spousal support is awarded only for as long as it will take the receiving spouse to meet their education, training, or other needs to be self-sufficient.
Events That Can Lead To Spousal Support Becoming Permanent:
- Spousal support may be ordered to be permanent if the receiving spouse has a medical condition that will prevent future employment, and the paying spouse can pay permanent maintenance.
- Spousal support may also continue after the remarriage or after the death of the paying spouse.
- Spousal support that continues after the death of the paying- spouse is generally secured by a life insurance policy.
Legal Tip
Spousal Support Can Be Adjusted
Depends on the laws of your state. Generally, the amount of spousal support awarded in a final judgment can be adjusted only if there exists a significant change in circumstances, such as:
Enforcing Payment of Spousal Support
In most states, if a spouse fails to pay the spousal support amount they were ordered to pay, the receiving spouse can bring a motion for contempt, asking the court to force that spouse to pay the support award.
Under current alimony laws, payments such as rehabilitative alimony are often considered taxable income for the receiving spouse. It’s important to factor in potential tax liabilities when discussing the terms of spousal support.
Paying Taxes on Spousal Support
According to the IRS, spousal support is considered a tax deduction. When calculating the amount of spousal support, consider factoring in tax consequences.
Depending on your circumstances, you should consult a tax planner to determine your potential tax liability.
Ten Common Misconceptions About Spousal Support
Misconception 1: Spousal support is automatically awarded in a divorce.
Reality: Spousal support is not automatically awarded. Courts consider various factors, such as the length of the marriage, the financial need of the recipient spouse, and the ability of the paying spouse to provide support.
Misconception 2: The higher-earning spouse always has to pay spousal support.
Reality: The court’s decision on spousal support is based on the case’s specific circumstances, not solely on the spouses’ relative incomes.
Misconception 3: Spousal support is a lifetime entitlement.
Reality: Spousal support is typically awarded for a limited duration to allow the recipient spouse to become self-sufficient. The length of the award is often tied to the length of the marriage.
Misconception 4: Spousal support payments are not taxable.
Reality: Spousal support payments are generally considered taxable income for the recipient and tax-deductible for the payer unless the divorce agreement specifies otherwise.
Misconception 5: Spousal support cannot be modified.
Reality: Spousal support orders can be modified if there is a significant change in the financial circumstances of either spouse, such as a job loss or a substantial increase in income.
Misconception 6: Spousal support is the same as child support.
Reality: Spousal and child support are distinctly different legal concepts with different purposes and calculations.
Misconception 7: Spousal support is only awarded in long-term marriages.
Reality: Spousal support can be awarded in shorter-term marriages, depending on the specific circumstances of the case and your state law.
Misconception 8: Spousal support is always paid in a lump sum.
Reality: Spousal support is typically paid in periodic installments, although a lump-sum payment may sometimes be an option.
Misconception 9: Spousal support is always paid to the wife.
Reality: Spousal support can be awarded to the husband or the wife, depending on the spouse’s financial circumstances.
Misconception 10: Spousal support is a punishment for the higher-earning spouse.
Reality: Spousal support is not a punishment but rather a means of ensuring the financial stability of the lower-earning spouse during and after the divorce process.
Three Testimonials On Whether Their Spousal Support Was Fair
Testimonial 1. This spouse had this to say about spousal support and her ex-husband:
As a woman going through a divorce, my ex is going for spousal support even though he worked the entire time. I just worked much harder and smarter than him. I also did all the housework and most everything with our kids. It sickens me that an able-bodied man (albeit lazy) is able to go after me to support him in the style that he was accustomed to from my very hard work.
Testimonial 2. This spouse had this to say about her experience with spousal support and went on to share the spousal support issues between her parents:
I’m divorced, but we were in our 20s, earning about the same amount of money, so alimony didn’t make sense.
My parents got divorced after 18 years of marriage. My mother didn’t request alimony (she should have) and is on SSDI, and my father retired in his 50s. I’m not sure what her life would have been like if she had received alimony instead of SSDI, but obviously, it would have ended when he retired. He might not have been able to retire in his 50s if he had had to pay spousal support.
I think alimony is 100% reasonable when one person sacrifices their career for their partner and family…
Testimonial 3. This frustrated spouse had this to say about her non-contributing spouse:
I have considered divorce as well for this very reason. I am the breadwinner and do a lot of the household and childcare stuff. The other day, I told him that he needs to pitch in more financially and with the household/child-rearing because I’m just tired and FED UP. Like why is he even here? What does he add to my life? I’m literally staying because my kids adore him. Sigh…
Source of Spousal Testimonials.
