How Judges Decide Alimony Amounts

Find out what judges consider when deciding how much support one spouse has to pay to the other during or after divorce.

By , Legal Editor

Nobody likes paying alimony. At least when you're paying child support, you can remind yourself that it's for your kids, not your ex. Long-term alimony (or spousal support, maintenance, or whatever term your state uses) is less common that it used to be. But some spouses—particularly those who've stalled their own careers while taking care of the home and children—still need the financial help, at least for a transitional period during and after divorce.

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

Who Gets Alimony?

Before judges get to the point of figuring out how much the alimony checks will be, they need to determine who is eligible to get the payments, and what type of support is appropriate.

Although some people still believe that only wives get alimony, the right to this financial support doesn't depend on gender. It also doesn't depend on who filed for divorce. Either spouse may request alimony in the divorce petition (or complaint) or the response (answer) to the initial divorce papers. Then, unless the couple reaches an agreement on the issue, the judge has to decide whether to grant that request.

In the vast majority of U.S. states, eligibility for alimony is based on:

  • need—whether one spouse needs financial support, and
  • ability to pay—whether the other spouse can afford pay that support.

But some states have very specific—and strict—requirements that must be met before a judge may award any alimony. Also, the qualification requirements are often different for the various types of spousal support, such as:

  • temporary alimony (or alimony "pendente lite") after a divorce case has started but before the judge issues the final divorce judgment or decree
  • rehabilitative spousal support (sometimes called transitional support, short-term maintenance, or similar terms), which is meant to help a spouse make the transition toward becoming self-supporting, and
  • "permanent" alimony or maintenance in the rare cases when a spouse can't be expected ever to become self-supporting and so needs long-term periodic payments.

(Learn more about how alimony works in general, as well as the specific types and requirements for spousal support in your state.)

When Do Judges Use a Formula to Calculate Spousal Support?

Unlike with child support orders—which are based on detailed guidelines for calculating the amount of support—the amount of alimony is usually based on what the judge believes is fair under the circumstances (known in legalese as the judge's "discretion"). So while you might find websites touting alimony calculators, very few states actually use these formulas.

New York, Illinois, and Colorado are the notable exceptions to this norm. In those states, spousal maintenance is typically 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 may still choose to depart from the guidelines when they believe the calculated amount would be unjust or inappropriate.

The use of formulas is somewhat more common for calculating temporary alimony, either as a matter of state law (like in Pennsylvania) or as a matter of court policies in certain counties. But when a state's law doesn't provide a guideline, judges will use these formulas only as a starting point. They'll still need to follow the legal requirements for considering the particular circumstances in a couple's marriage (discussed below).

What Judges Consider When Setting Alimony

In the vast majority of states, the laws require judges to consider certain factors when deciding how much alimony to award in a divorce. They usually must explain their reasons in their orders. Beyond that, however, judges are mostly free to decide what's appropriate in any particular case.

The specific factors that judges must consider vary from state to state, but they typically include:

  • both spouses' needs
  • each spouse's ability to earn and support themselves, based on their education, employment history, age, health, and other factors
  • both spouses' other financial resources, including separate property, assets they did or will receive as part of the property division in their divorce, expected future assets, and debts
  • whether the supported spouse can't work outside the home because of the needs of a child or children living with that spouse
  • each spouse's contributions to the marriage, including through childcare, homemaking, and efforts to further the other spouse's education, career, and future earning capacity
  • whether the supported spouse was out of the workforce or passed up career opportunities in order to care for the couple's children, their home, or both
  • the tax consequences of alimony payments, under both federal law (which eliminated the alimony deduction for divorces finalized or alimony orders modified after 2018) and state law (which might not follow the federal rules)
  • the length of the marriage (although that's more of a factor when deciding how long alimony will last), and
  • any history of domestic violence.

In a few states, judges will also consider a spouse's adultery or other misconduct when making alimony decisions.

How Do Judges Determine Spouses' Needs?

When judges are considering both spouses' needs, state laws usually explain that those needs are based the standard of living a couple enjoyed during the marriage (before they separated). As a practical matter, of course, many divorced spouses find it difficult to maintain that living standard in the immediate aftermath of divorce, given the added expenses of maintaining two separate households—especially when children are in the picture.

That's why most judges focus on spouses' reasonable needs. And a few state laws define "need" narrowly, as the reasonable minimum amount required to meet basic living expenses. Of course, it's up to the individual judge to sort out what's reasonable under the circumstances. And in cases when there simply isn't enough money to go around, judges usually look for a way to make the divorced spouses share the financial pain equally.

Example: Roderic Duncan, a now-deceased former family law judge (and Nolo author) shared an example of how a judge might determine a supported spouse's reasonable need for alimony: "Imagine that a husband who files for divorce earns $5,000 a month. His wife stays at home with three young children and earns no income. Under their state's formula, she's entitled to $1,650 in monthly child support. But say she demonstrates that her total rock-bottom needs (including rent or house payments) are $2,300 a month. If convinced that her budget is solid, the judge would conclude that she needs $650 in spousal support ($2,300 minus $1,650) to make up the difference." And if all the other considerations support that amount (including the husband's ability to pay it), the judge might very well award that much in alimony—at least until the children get older and the wife can reenter the workforce and begin to support herself. (But see more below on potential limits to the amount of alimony, even when the recipient has demonstrated a need for more support.)

Are Savings Included in a Couple's Standard of Living?

The goal of maintaining the marital standard of living after divorce might not be a problem when the high-earning spouse has enough money to cover both spouses' expenses, even at their former lifestyle. But what about couples who agreed it was important to put away a generous slice of their income into savings, retirement accounts, or other investments? Should judges consider that habit to be a part of their standard of living—and therefore include a savings component in the amount of alimony?

If you're fortunate (or frugal) enough to be facing this issue, the answer to that question will depend on where you live. Courts in different states have taken opposite views on the question. For instance:

  • California courts have long held that when a couple's marital standard of living included savings and investments, judges may consider that as part of their ongoing expenses. As one court put it, the wife shouldn't "be deprived of her accustomed lifestyle just because it involved the purchase of stocks and bonds rather than fur coats." (In re Marriage of Winter, 7 Cal. App. 4th 1926 (1992).)
  • In contrast, the Florida Supreme Court has held that alimony may not include a savings component. Even when a couple had a history of frugality and savings, the court explained that the supported spouse would receive a share of those savings as part of the property division in the divorce, so the judge shouldn't include "speculative post-dissolution savings" in alimony. (Mallard v. Mallard, 771 So.2d 1138 (Fla. Sup. Ct. 2000).)

The bottom line: The courts in your state may or may not have taken a stand on this and many similar questions. There's plenty of room for disagreement. If you're dealing with a dispute over alimony, you should speak with an experienced, local family law attorney who will understand the rules in your state—and how local judges are likely to deal with these issues.

What Is a Spouse's Earning Capacity?

As we've seen, states typically require judges to consider both spouses' ability to earn. That means a judge won't just look at current income, but what spouses could reasonably earn, given their education, training, experience, job skills, and the local demand for those skills.

When either spouse is voluntarily earning below their potential, the judge may "impute" income to that spouse. For example, say you were the high-earning spouse in your marriage, making $200,000 a year as a lawyer. But after you and your spouse separated, you quit your job to become a sculptor earning less than $30,000 a year. The judge might order you to pay an amount of alimony consistent with your ability to earn rather than your actual earnings.

However, if you had a valid reason to switch to a lower-paying job—for instance, because work-related stress was causing medical and psychological harm—you might be able to provide evidence to convince a judge not to base the alimony amount on your old salary. But you can expect a fight from your spouse or ex.

The supported spouse's current and future earning potential also comes into play when judges are setting the amount of alimony. As part of rehabilitative alimony, judges often order a vocational evaluation with an expert who will analyze how much that spouse can currently earn and what steps need to be taken in order to become self-supporting.

Upper Limits on Alimony and One Judge's Informal "40% Rule"

A few state laws set caps on the amount of alimony. In Illinois, for instance, when maintenance is calculated under the state's guideline formula, the result may not be more than 40% of both spouses' combined net incomes. Also, when the guideline calculation would result in combined spousal maintenance and child support that is more than 50% of the paying spouse's income, the law says that judges may dispense with the state's formula and decide on a fair amount of support after considering the relevant circumstances in the case. (750 Ill. Comp. Stat. § 5/504(b-1) (2022).)

Even when there isn't a statutory limit on the amount of alimony, some judges might follow their own unwritten standards. For instance, Judge Duncan told us: "When I was on the bench, I had a personal and informal rule that I would usually not leave people who were paying support with less than 40% of their income after they had made their child support and alimony payments, no matter how great the other spouse's need. Without at least that amount, it seemed to me that a wage earner would have little incentive to go to work every day. However, if the couple had more than four children and the supported spouse had no job skills, I might well go lower than 40%. I have never discussed this ‘rule' with other judges, but I would expect that many—although not all—would agree with the reasoning."

How Long Does Alimony Last?

By its very nature, temporary alimony lasts only until the divorce is final. Some states also have absolute limits on particular types of spousal support, such as a two-year limit on "bridge-the-gap" alimony in Florida. And all alimony ends when the supported spouse remarries (or, in some states, begins living with a nonmarital partner).

Otherwise, states have different rules for determining how long support payments will last. Often, judges will base that decision on the same considerations as when they set the amount of maintenance. Other times, state laws will provide separate rules for the duration of alimony. For example:

  • In California, spouses are expected to become self-supporting in a "reasonable" amount of time. When the marriage has lasted for less than 10 years, that generally means half the length of the marriage.
  • In Kansas, alimony may not last for more than 121 months, with rare exceptions.

Getting Help With Alimony

If you want to avoid the expense, stress, and time of a divorce trial, but you and your spouse are having trouble resolving your disagreements about alimony, mediation could be a good solution. When you're able to reach a comprehensive settlement agreement before starting the divorce process, you'll be able to file for an uncontested divorce—which means that you can probably get a DIY divorce without a lawyer.

But if one of you wants maintenance and the other hasn't agreed, you should at least speak with a lawyer about your rights and options going forward. Particularly in states that don't use a formula to calculate spousal support—most of the country—the judge will decide on how much alimony to award based on the evidence you and your spouse provide about your expenses and assets, earning capacity, the standard of living you had during the marriage, and all the other factors that go into alimony decisions. An experienced family law attorney will know how to gather the right kind of evidence to convince the judge of your position—or even to convince your spouse's lawyer to agree to a settlement.

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