Leaving a support decision in the hands of a judge is risky business. This isn’t like child support, where the formulas are clear and pretty rigid. In most states, the amount and duration of spousal support payments are entirely up to the judge. Obviously, it’s preferable for you and your spouse to keep control of decisions about spousal support. If the two of you can agree to an amount of support and how long it will be paid, then that’s what the judge will order. It’s the only way to predict what’s going to happen.
Only about a dozen states give judges even general guidelines for calculating support. In these states, the judge uses a formula that takes into account the length of the marriage and the spouses’ respective incomes to calculate a starting figure. Then the judge factors in other circumstances to arrive at a final amount and decide how long the payments will last. Here’s a look at some of those circumstances.
Need and Ability to Pay
Once the court decides that one spouse is entitled to support, it will try to quantify that need and the other spouse’s ability to pay. The judge may take into account:
- how property is being divided in the divorce
- the standard of living during the marriage, and the dependent spouse’s ability to maintain that standard in the absence of support
- each spouse’s separate income, assets, and obligations (states define “income” differently, with some including unearned income and others limiting the definition more strictly)
- the length of the marriage (more significant in deciding how long support will last than in determining the amount)
- whether the spouses lived together before they were married and whether any part of the cohabitation should be included in the length of the marriage
- each spouse’s age and health
- the needs of the children, and whether child care responsibilities affect the dependent spouse’s ability to return to work
- whether the dependent spouse left the workforce to be a homemaker or raise children
- how long the dependent spouse has been out of the workforce, that spouse’s marketable skills, and what retraining might be necessary
- contributions that either spouse made to the other’s training, education, or career advancement
- the possibility that either spouse may acquire assets in the future (such as the maturing of stock options or a large inheritance), and
- any other factors that the judge thinks should be considered.
In addition to looking at actual income, a judge may examine each spouse’s ability to earn money. The idea here is that if you could earn significantly more than you are, but voluntarily choose a lower standard of living, your spouse shouldn’t have to suffer financially because of it.
If either you or your spouse has skills or education that you are not using—for example, if you are trained as a lawyer but are working as a sculptor—the court can “impute” to you a higher income than what you actually have. You may be ordered to pay support consistent with your earning power, not your actual income. And if you’re the recipient spouse, you might get support that’s consistent with your ability to earn, rather than what you actually earn—or you may be ordered to fend for yourself.
In some states, you can argue that fault should be considered in setting spousal support (you can make this argument whether or not you filed for divorce on the basis of fault). If the higher-earning spouse committed adultery, was abusive, or is for some other reason at fault for the divorce, the support payment may be increased. Of course, as the saying goes, you can’t get blood from a turnip. If there’s only a certain amount of support that your errant spouse can afford, the court won’t order an unrealistically high payment. More commonly, the spouse who receives support has payments reduced because of fault.
Beyond Spousal Support
Spousal support is usually just a temporary measure, designed to keep one spouse from running into financial trouble immediately after a divorce. Even if you’re receiving support, you are ultimately responsible for your financial future. Make a one-year, three-year, and five-year plan for where you want to be in your life, and include what kind of work you want to be doing and what you want in terms of salary and benefits. If you received significant property or other assets in the divorce settlement, invest them wisely and with an eye toward the future. Learn to budget, if you haven’t yet.
Excerpted from Nolo’s Essential Guide to Divorce, by Emily Doskow.