Each state will utilize their own method in calculating spousal support. Amongst all states, spousal support is determined on a case-by-case basis, leaving a court wide discretion to determine whether spousal support is necessary and how much the paying spouse is required to remit each month. Because a court is given such wide discretion when it comes to spousal support, spousal support awards can be challenging to predict. Spousal support is generally a more complicated area when it comes to divorce matters and can lead to lengthy litigation.
Because each state has its own equation and considerations in calculating support payments, each states’ requirements won’t be discussed at length here. However, we will discuss several common considerations and circumstances that are likely to be considered in every state. Among other considerations, a court will take into account: the paying spouse’s ability to pay spousal support, the marital property division, the marriage’s duration, the paying and payee spouse’s age, health and/or disabilities, the paying and payee spouse’s employment history and the payee spouse’s ability to become employed, the paying and payee spouse’s education and training, the paying and payee income history and income potential, contributions the payee spouse made to the paying spouse’s education or training, the payee spouse’s contributions as a homemaker, child support orders, potential tax consequences should spousal support be awarded, economic misconduct that contributed to losses in investment or property, marital misconduct, and other considerations the court deems appropriate under the circumstances. The considerations are endless.
The Ability to Pay
To determine that spousal support is necessary, the paying spouse must have the ability to pay. We usually assume spousal support is involved in divorce cases where the couple has exceptional wealth, and there is good reason to make that assumption. A court is highly unlikely to order a spouse that is unemployed or is making minimum wage to make monthly spousal support payments, as an order requiring such would likely be moot. Generally, the more money the paying spouse makes, the more likely it is that spousal support will be awarded. Although spousal support is based on more than the paying and payee’s spouses’ wages or salary, spousal support typically will not exceed 40% of the paying spouse’s gross net income.
Marital and Non-Marital Assets and Marital Property Division
Marital property division and spousal support are examined together. Although each spouse’s education, training, and experience is likely to have a direct impact on the couple’s combined income, the couple’s individual income, assets, and debts must be considered. The court will consider both marital and non-marital assets when determining whether a spousal support award is necessary and what the award should amount to.
For example, in Maryland, the court will generally characterize property, placing them into two separate categories: (1) marital property, and (2) non-marital property. Marital property is property acquired during the marriage relationship, whereas non-marital property, or separate property, which is property acquired prior to the marriage relationship or property that is considered to be inheritance or was given to one spouse only by a related third-party. All income, no matter the source, will be considered. When a payee spouse’s separate property is enough to meet their needs and will allow them to retain the status quo maintained throughout the marriage, there is generally no need to award spousal support.
For example, suppose John and Tammy, a couple in their late 30s, are seeking a divorce. The couple has been married 10 years and have three children, ages 3, 5, and 7. John owns a Fortune 500 company and Tammy is a stay-at-home mom. However, Tammy is independently wealthy and is the heiress to a large estate, amassed by generational wealth. Tammy receives approximately $20,000 in cash each month and owns six properties. A court is likely to consider Tammy’s apparent independent wealth and assets and may not award spousal support provided under these circumstances, although the court could.
Many times, the couple can mediate an arrangement without a court order that will necessarily balance marital property division with spousal support. Alternatively, it may be agreed that spousal support will not be required where the payee spouse agrees to take more marital property than the paying spouse. However, this option should not be taken lightly, and the payee spouse would be well advised to weigh the marital property’s value with the potential value that a spousal support award could have, which an attorney can assist with.
Marital Mortgage Deviation
Some states, such as Pennsylvania, will consider deviations when determining spousal support, such as a marital mortgage deviation. Divorce proceedings will determine which ex-spouse is entitled to remain in the marital home post-divorce. It is assumed that the ex-spouse who remains in the home during divorce proceedings and beyond will be solely responsible concerning all expenses related to the residence. However, when costs such as the monthly mortgage, annual real estate taxes, and home insurance exceed the occupying spouse’s income more than 25% or more (including any child support awards), the court may permit a deviation requiring the paying ex-spouse to contribute as much as 50%.
Marriage Duration
The longer the couple is married, the higher the spousal support payment will be. Where permanent spousal support is awarded, it will be awarded when a long-term marriage has existed. Some states may categorize marriages into long-term, moderate-term, and short-term marriages. For example, Florida uses the categories, and has deemed a long-term marriage as one lasting seventeen years or more, a moderate-term marriage is one lasting less than seventeen years but more than seven years, and a short-term marriage is one lasting less than seven years. Time requirements will vary by state, but Florida’s marriage duration standards are recognized in several states.
In Texas, to receive spousal support, a couple must be married at least 10 years. Surprisingly, some courts may also consider the time in which the couple cohabited prior to marriage and count this time towards the marriage’s total length. However, it is possible that some states may not require that the marriage last any specific length to award spousal support.
Age and Health
Age as well as the spouses’ relative health and wellness will be considered by the court when calculating spousal support. A young, able-bodied spouse is less likely to receive spousal support than an older, retired spouse. However, an older spouse with no education or training is more likely to receive spousal support than one who had a long, prosperous career.
In addition, where the dependent spouse is chronically ill or permanently disabled, the higher the spousal payment will be. Consider a payee spouse who requires in-home care or is required to reside in a nursing home, who is too advanced in age or has too many physical or mental impediments to meet their monetary needs.
Education, Training, and Work Experience
In, Spousal Support Basics, we discussed that the main purpose in granting the payee spouse a spousal support award is to maintain the payee spouse’s living situation, or their “status quo” throughout the marriage while the payee spouse attempts to become economically independent. Generally, a court is more likely to require that spousal support payments be made when there is a substantial disparity or gap between the paying and payee spouse’s wages and/or education, training, or work experience. In these circumstances, a court will typically order that monthly spousal support payments be made until the payee spouse can get the required education, training, and work experience necessary to bridge the gap, at least partially.
It is common that one spouse will have monetarily supported the other while they obtained a degree or license (such as medical licenses and law licenses) or put their own careers on hold to raise the couple’s children. When a divorce takes place, a court will not put a monetary value on a license or degree obtained or calculate this into the marital property division because it is inherently hard to place a value on a particular degree or license. However, the court will likely take any hardships the payee spouse endured while the paying spouse obtained their degree or license into consideration and increase the spousal support award accordingly. This is known as reimbursement spousal support. Generally, the total educational expenses will be calculated into the monthly spousal support payments and will be paid until the payee spouse has been reimbursed.
Contributions to the Marriage
As a society, we recognize that not all valuable contributions made to a marriage are monetary. Child Rearing, housekeeping, paying bills, and supporting a spouse while they obtain a license, education, or build their career, are all considered valuable contributions that a court will consider in determining whether spousal support should be awarded. It would violate public policy to prevent a payee spouse in receiving spousal support payments when they did not work outside the home, but steadily worked within the home and dedicate substantial time to maintaining the marriage relationship.
Generally, this situation is likely to involve a scenario where one spouse stayed at home and raised the couple’s children while the other worked in a high-paying position. Or, when the payee spouse worked outside the home, they worked long hours or in more than one position to monetarily support the paying spouse who was obtaining a degree or license (discussed above).
Child Custody
Nearly all states consider child custody when determining whether spousal support is appropriate and what the spousal support award should amount to, excluding New Mexico, Kansas, South Dakota, Mississippi, Alabama, Georgia, Virginia, and Massachusetts. Generally, when the dependent parent is the children’s custodian, higher spousal support payments are likely to result.
Whether the children are school aged is also a consideration. Where the payee spouse has been a homemaker and has borne the responsibility in raising the couple’s children, the court is likely to grant spousal support until the child(ren) are old enough to attend school. When children are involved in a divorce, the goal is to avoid disrupting their lives, making the transition as smooth as possible. A parents’ split, in addition to their primary caretaker being required to leave the home to make money or receive specialized training or education when they have remained at home with their young children, would be seen as highly disruptive to a child’s emotional well-being, particularly when the paying spouse’s salary is enough to meet the children’s and payee spouse’s needs until the children are school aged.
The children’s particular needs must also be considered when the child has a mental or physical disability that requires the custodial parent to remain in the home and provide long-term care. This situation is likely to increase the spousal support payment and may indicate that permanent spousal support is needed so that the payee parent may remain unemployed to provide care to the child. However, this circumstance may also be taken into consideration when calculating child support payments.
However, it is important to realize that spousal support is not calculated to help with childcare expenses, a child’s extracurricular activities, or other child-related expenses. For example, when considering spousal support for a child with disabilities, as discussed above, the spousal support award is the amount necessary to allow the payee spouse to remain home and/or unemployed, not the amount it would take to provide the child proper medical, health insurance, etc. That will be calculated into the paying spouse’s monthly child support obligation.
Domestic Violence and Adultery
There are many states that consider marital misconduct when calculating spousal support payments. Misconduct leading to a divorce such as domestic violence and/or adultery can significantly increase the spousal support payment. When the divorce was caused by misconduct, a court may be inclined to increase the payer’s spousal support payment, particularly when the circumstances were especially malicious or heinous. However, one condition that a court won’t consider when determining whether to award spousal support is the spouse seeking the divorce. You cannot obtain spousal support simply because you did or did not seek a divorce. However, the reason for seeking a divorce may be considered by the court.
When Spousal Support Ends or Terminates
Death
Death does not necessarily terminate ongoing spousal support payments and the court may order that the paying spouse’s payments be made by their estate. However, should spousal support payments terminate, the paying or payee spouse’s death is a likely reason. Although some spousal support orders may allow the award to continue even when the paying spouse has died, when it is not particularly stated in the order that the award is to supersede the paying spouse’s death, the obligation to pay spousal support will generally end when either the paying spouse or payee spouse dies.
Romantic Relationships, Cohabitation, and Re-Marriage
Like death, evidence that the payee spouse is in a romantic relationship, is in cohabitation with a romantic partner, or has remarried another individual may terminate ongoing spousal support payments. A paying spouse is not expected to contribute to the payee spouse’s livelihood when the payee spouse has a partner that can monetarily support them. For spousal support payments to be terminated, the paying spouse will be required to show evidence that the payee spouse is living with a romantic partner and that they are recognized as a couple. This extends to both heterosexual and same sex marriages.
A Note on Spousal Support and Gender Equality
Although we tend to consider spousal support payments as payments made to wives with ex-husbands who work in high-paying positions, most states have made substantial changes to their spousal support guidelines to make them gender-neutral. With many women working outside the home and having prosperous careers, women can be ordered to make spousal support payments to their ex-husbands.
The Takeaway
Spousal support obligations will vary by state and can be very hard to predict. Because spousal support is considered on a case-by-case basis and no two cases are exactly alike, spousal support awards can vary greatly in the same state. You will need to review your state’s spousal support guidelines to know what circumstances the court will consider in awarding spousal support, which an experienced divorce attorney can assist with.
