Spousal Support
Spousal support, also known as “spousal maintenance” or “alimony,” is a periodic, predetermined monetary sum paid by one ex-spouse to the other when the couple is legally separated or divorced. The amount is generally determined by the court that is granting or has granted the divorce. It is within the court’s discretion to determine whether spousal support should be awarded, how much spousal support should be awarded, and the period in which the spousal support should be awarded. However, where the ex-spouses have an amicable relationship, they are permitted to come to an agreement regarding their spousal support obligations and a court will generally recognize the agreement, provided the agreement is equitable to both parties.
Spousal Support’s Purpose
Not all states recognize spousal support, and some states recognize only certain spousal support types, and where states do recognize spousal support, it is determined on a case-by-case basis. This means that an ex-spouse is not automatically entitled to receive spousal support upon separation or divorce, nor is an ex-spouse automatically required to make spousal support payments when a legal separation or divorce occurs. Overall, spousal support payments are more common when there is a large gap in the ex-spouses’ earning capacity, education, training, or work experience.
Generally, spousal support was designed to provide the dependent ex-spouse with monetary stability while they acquire the training, experience, and resources necessary to support their own needs. However, spousal support can be long-term or permanent when the circumstances so require. Spousal support was also designed to assist one spouse during, and after, divorce proceedings and to maintain the payee spouse’s living standards as they were throughout the marriage.
This is particularly important where children are involved. The goal is to maintain the “status quo” established during the marriage, either temporarily or permanently. The court has substantial discretion when it comes to awarding spousal support, although there are several common considerations amongst all courts. We will discuss these considerations at length in a related article, Calculating Spousal Support Payments.
Spousal Support Types
Temporary Spousal Support
One spousal support type available, and likely the most common, is temporary spousal support. Temporary spousal support is generally granted when the payee spouse has a marketable skill set, with some training, education, and work experience, but the work experience is not as recent, and they have remained at home during the marriage. The payee spouse must now obtain work but needs additional monetary support until they can become employed. The support order may be limited to lasting only until divorce proceedings end, or they may extend longer, pursuant to the court’s discretion.
For example, consider a payee spouse, Joe, who obtained a bachelor’s degree in accounting. He worked as a CPA over several years, prior to meeting Jan, the paying spouse. Jan is a veterinarian with a growing vet practice. She makes well over $250,000 a year and thought it would be best that Joe stays home and raises the couple’s children, who are 3 and 9. Joe and Jan have been married 13 years and Joe has not worked as a CPA in 8 years. In this scenario, the court would likely award Joe temporary spousal support, lasting through a predetermined stated period in the spousal support order, which would provide Joe monetary support while he attempts to secure employment as a CPA. The court may also order that the spousal support payments be made to Joe until the youngest child, age 3, is old enough to attend school, so that Joe can continue to provide in-home care to the child as he has been. We’ll discuss child custody and spousal support payments made to a parent providing care to their children in the home more in Calculating Spousal Support Payments.
Rehabilitative Spousal Support
Similarly, to temporary spousal support, rehabilitative spousal support also lacks permanency, and remains in place until the payee spouse can obtain the education or training needed to be employable. A court may order that that spousal support payments be periodically reviewed to determine whether they continue to be necessary, or the court may order that the paying spouse request that spousal support payments be terminated once the payee spouse becomes economically and monetarily independent.
Consider a payee spouse, Lisa, in her late 40s who obtained a degree in early childhood education to become a teacher around 23 years ago. Lisa never used her degree, as she married her husband, James, the paying spouse, immediately upon graduating college. James had already been working in his career as an aerospace engineer. Lisa stayed home to raise the couple’s children and there was never a need to have Lisa work outside the home. Lisa, who has had no practical work experience in over 20 years, was recently divorced by James. Due to her educational background, somewhat young age, and her physical ability to work, Lisa can seek employment as a teacher. However, Lisa will likely need updated coursework including additional classes, student teaching, and possibly more to become employed as a teacher. In this scenario, the court is likely to require James to pay spousal support until Lisa can get the education, training, and experience necessary to work as a teacher. The court may order that assistance with Lisa’s educational and training expenses be included in the monthly spousal support payments and the payments will only last until Lisa obtains employment.
Permanent Spousal Support
Permanent spousal support is much less likely to be ordered and is not all that common. Generally, when permanent spousal support is ordered, the couple will have been married a very long time, the payee spouse is advanced in age, has no work experience, has physical or mental disabilities that prevent employment, or is chronically or terminally ill. However, these are only examples. Ultimately, to have permanent spousal support to be awarded, the court must determine that the payee spouse’s livelihood cannot be restored to what it was through the marriage relationship without permanent spousal support payments.
Suppose that Betty, the payee spouse, and Don, the paying spouse, have been married 51 years. The couple were high school sweethearts and married when they were 18. Don, an attorney, now 69, has decided that he no longer wants to be married to Betty and has decided to marry his receptionist, who is much younger. Betty, also 69, has no work experience, and stayed at home through the couple’s marriage, maintaining the couple’s home and raising their children. Betty was diagnosed with Crohn’s Disease many years ago and has endured many surgeries and hospital stays throughout the marriage. Notwithstanding that Don is leaving his long-time, chronically ill partner to pursue a relationship with a much younger woman, the court could reasonably order permanent spousal support under these circumstances. Being nearly 70 years old, having no work experience, and chronically ill, it is probable that Betty would not be able to maintain her status or restore her livelihood on her own.
Reimbursement Spousal Support
It is not uncommon that a spouse will put their own career on hold or work in several positions at one time to support their spouse while they obtain a degree or license. It is inherently challenging to determine a particular educational program, degree, or licenses value long-term, and its value is not considered in the marital property division. Rather, the court will consider the expenses it took to support the now-paying spouse during that time.
For example, suppose Sarah, the payee spouse, has a bachelor’s degree in marketing. Sarah met Sam, the paying spouse, in college. Upon graduating, the couple married, and Sam immediately entered medical school. Sam could not work during medical school or post-medical school during his resident training program. Sarah worked as a marketing specialist with a graphic design company 8:00-5:00, Monday-Friday. However, Sarah also worked nights and weekends as a grocery store clerk to manage the nearly $300,000 debt created by Sam’s medical school training. Eight years later, Sam was able to begin work as a surgeon, earning approximately $175,000 a year, and quickly divorcing Sarah. Here, a court could order Sam to make spousal support payments that include Sarah’s monetary contributions to the marriage and Sam’s educational expenses during his lengthy medical training program. Sam’s medical license is ostensibly invaluable, and it would be hard to determine what his medical license is worth and the income it will bring Sam. However, the court can approximate what monetary value Sarah brought to the marriage relationship during that period, and order that Sam reimburse her.
Keep in mind that these are only examples, and there is much crossover between each spousal support type. The circumstances lending to each spousal support type will vary by state and by court, as courts are given wide discretion to impose spousal support and determine the amount necessary to make the payee spouse whole.
Spousal Support Duration
When the spousal support order does not include a termination date, spousal support will continue until otherwise provided by the court. Generally, spousal support will end when the dependent ex-spouse becomes romantically involved with someone else, cohabitates with a romantic partner, or remarries, even when the spousal support payment was ordered to be paid through a longer period.
In addition, the paying spouse’s death does not necessarily automatically terminate spousal support payments. Instead, the court may order that spousal support payments continue and that they be paid by the paying spouse’s estate. However, where the order contains no clause about whether spousal support is to continue past the paying spouse’s death, the paying spouse’s death will generally relieve the obligation to pay. In contrast, the payee spouse’s death will generally relieve spousal support obligations immediately.
Changes and Alterations to Spousal Support Payments
Generally, spousal support payments do not change with time once they have been ordered. The paying spouse will typically pay the same amount each month, much like child support payments. An amount is determined by the court at the outset and the same amount will be due until the spousal support payments expire. However, a court may terminate, suspend, or reduce a monthly spousal support payment when there has been a substantial change in circumstances. Circumstances that a court would likely to consider in determining whether a spousal support payment should be altered include unemployment, remarriage, incapacity, and death.
Prenuptial Agreements and Spousal Support
Prenuptial agreements are more popular now than ever, with many couples marrying at a later age and gaining their own wealth and success prior to marriage. Generally, prenuptial agreements are valid, with certain exceptions. For example, most states require that the prenuptial agreement be voluntary, that the assets at stake are completely disclosed, that each spouse be represented by their own attorney, that the agreement be in writing, and more. Modern prenuptial agreements seek to eliminate spousal support and doing so is generally valid when these requirements have been met. A prenuptial agreement waiving spousal support if the couple divorces is generally more common when one or both spouses are independently wealthy or have generational wealth on their side. It is advisable to seek an attorney’s advice prior to signing a prenuptial agreement, particularly one waiving any spousal support obligations that may arise, to understand what you could be giving up.
Child Support vs. Spousal Support
Spousal support is not the same as child support. They are two separate payments, and a court may order that the paying spouse make both child support payments and spousal support payments or only child support payments. They contrast in many ways and the elements used to determine child support payments and spousal support vary to some extent, although there is some crossover.
To begin, the court has much more discretion when it comes to spousal support payments than child support payments. Most states implement strict guidelines when it comes to the equation used to determine child support payments and have guidelines when it comes to the elements they consider when determining monthly child support payments. All state child support guidelines are centered around the ex-couple’s individual income, how many children there are to support, and the children’s particular needs (medical, educational, health insurance costs, etc.). Although there may be other considerations, these three elements sum it up.
Contrast these elements with the considerations a court will make when determining spousal support payments, including the educational and wage gap existing between the paying and payee spouse, the training and time needed to minimize that gap, the couple’s status quo throughout their marriage, how many children are involved and their ages, the payee and paying spouse’s age and their physical abilities, the marriage’s duration, abuse or adultery occurring during the marriage relationship, etc. Overall, the considerations when determining spousal support payments are much more malleable than the considerations made with respect to child support.
Due to the varying considerations and the public policy behind child support payments versus spousal support payments, spousal support payments do not receive the same protection that child support payments do. Every state recognizes the importance in paying child support; the law recognizes that children brought into this world require monetary support by their parents, as they cannot support themselves. To avoid non-payment when it comes to child support, the paying parent’s wages may be garnished, a lien may be placed on their property, or they could be required to serve time behind bars.
Contrast this with spousal support. With respect to spousal support, the paying spouse has not made payments as ordered or agreed, the payee spouse must bring a contempt proceeding in the court which granted the legal separation or divorce. The dependent spouse will request that all past due payments and payments yet due be paid. While the court may order that the payments be made, there is little a court or a dependent ex-spouse can do to ensure compliance with a court order.
While these penalties are substantially the same when it comes to non-payment, the process in obtaining past due payments are quite dissimilar, and a court will take noncompliance with required child support payments much more seriously than noncompliance with required spousal support payments. Where the Attorney General can bring a claim against a paying parent who does not make child support payments, generally, it’s the payee’s responsibility to haul a paying spouse into court when they haven’t made their agreed or court-ordered spousal support payments.
Spousal Support and Tax Treatment
The IRS has created criteria concerning spousal support and how it should be treated when calculating annual taxes. Generally, the paying spouse can receive a tax deduction on spousal support payments, and the spousal support payments received by the payee spouse is considered taxable income. For tax purposes both the paying and payee spouse should keep thorough records including:
For the paying spouse:
For the payee spouse:
The Takeaway
Here, we’ve discussed spousal support payments generally, and what you might be able to expect. Because each state has its own regulations concerning spousal support payments, you’ll need to consult your state’s Family Code, which will likely cover spousal payments and what considerations a court will make when determining whether spousal support is necessary and the amount likely to be granted. Many online resources are available to help you understand spousal support payments, particularly those resources published by government entities. In a separate article, we will discuss, at length, the considerations all courts are likely to consider when calculating the required monthly spousal support payments. See Calculating Spousal Support Payments.
