Spousal support, also known as alimony, is an obligation for one former spouse to make payments to the other spouse on either a “lump sum” or periodic basis. The concept behind spousal support is that, going forward beyond the entry of a judgment of divorce, not all spouses are equal; especially when it comes to earning a living.
Unlike other areas of family law that are driven by statute, the various factors considered by a family court in the determination of spousal support arise from our common law; that is to say, caselaw. The caselaw addressing spousal support has led to the development of the following factors considered by the family court judge:
- the ages of the parties;
- the length of the marriage;
- the amount of property in the marital estate;
- the education and training of the parties;
- the ability of the parties to work and earn an income;
- the ability of the parties to pay spousal support relative to other court-imposed obligations;
- the need of one party for alimony;
- the health of the parties;
- the prior standard of living of the parties;
- the past conduct of the parties, including any fault of a party in causing the divorce;
- how cohabitation with a new partner affects a former spouse’s financial status.
There is no rigid formula to determine alimony. When consulting a divorce lawyer, many client prospects are given the “rule of thumb” that the term of alimony is generally considered to be one third of the length of the marriage. This is but a general concept, not a rule, and if a study was performed, we doubt many alimony cases would bear out the accuracy of the rule.
The two most important objective factors in the determination of alimony are the length of the marriage and the relative income of the parties. A long-term marriage [over 15-years] with a wide disparity in income, is a classic “alimony” case. The initial assessment of a family court is to determine whether alimony will be “rehabilitative” or “permanent”. Where the payee is over 50, without a significant work history, and the marriage was of several decades, then permanent alimony is possible. Permanent alimony continues until the death or remarriage of the payee. Rehabilitative alimony, on the other hand, is designed to last for a much shorter term; usually until the payee has had sufficient time to obtain some form of employment following the conclusion of the divorce proceeding.
A significant recently published opinion from the Michigan Court of Appeals addressed the possibility of the continuation of alimony beyond the initial “presumptive term” established by the family court following a trial. The Court of Appeals ruled that the spousal support statute provides that once awarded, either party may subsequently petition the family court for a modification of the alimony award. So if the initial term ends and alimony payments stop, the payee may later petition the family court for additional payments. Whether they will be awarded depends, as always, on the present circumstances. In the case referenced above, and others like it, the deterioration of the payee’s health was significant.
Spousal support payments are tax-deductible to the payor and taxable income to the payee through December 31, 2018. The recently-passed “Tax Cuts and Jobs Act” eliminates this long-standing tax deduction for support payors in any divorce degree entered or modified after calendar 2018. For the past 75-years, this deduction operated as a “tax subsidy” that generally aided divorcing families. The idea behind the subsidy was to shift the tax burden on support payments from the payor, usually in a higher tax bracket, to the payee, in a lower bracket. If your divorce involves a spousal support component, this new law should be taken into account.
Spousal support can be made “non-modifiable” by the agreement of the parties, but that option is not available in court. If the parties cannot decide on the rate or term of alimony, a judge will order [or not order] alimony to be paid until further order of the court, keeping the matter open for subsequent adjustments or modification, including the termination of the alimony obligation altogether.
In nearly every case where alimony is discussed, it is a negotiated issue that brings into play all aspects of the marital history between the parties, with a keen focus on the property and income potential of both spouses. In most alimony cases, once an agreement on the rate and term of spousal support is determined, the rest of the settlement falls into place.