What is “spousal support”?

Many states now use the term “spousal support” instead of “alimony” but they are one and the same.  “Spousal support” and “alimony” are used when referring to an allowance of money or property that is intended as a division of marital property.  The law is generally defined as “the payment or payments to a spouse or former spouse that is for both sustenance and for support of the spouse or former spouse.  The language of the law may vary from state to state but generally it means the same.

When may spousal support be ordered?

The court may order spousal support in a divorce action (including temporary spousal support during the time the divorce action is pending), or in an action for support only (i.e. a spouse may request only that the court order spousal support while not requesting that the court terminate the marriage, sometimes referred to as a separation).

Many state laws require that a married person support his or her spouse.  Spousal support is an allowance for nourishment or sustenance which the court may compel one spouse to pay to the other when they are being or have been divorced.  While spousal support, whether temporary support during the pendency of the action (“spousal support pendent lite,” also commonly referred to as “temporary alimony”) or permanent (regardless of the actual length of time) is ordinarily granted to the wife, some state laws provide that in appropriate cases, spousal support maybe granted to the husband.

An award of spousal support pendente lite is discretionary with the court.  The court may include in a spousal award expenses for such items as housing (i.e. rent or mortgage payment), food medical expenses, transportation and attorney fees.  While a temporary spousal support award generally terminates after a divorce, annulment or legal separation decree has been entered, there are some state circumstances in which the temporary support can continue.  Some of these circumstances may include physical, mental or emotional health of the spouse receiving support.

How is the amount of temporary spousal support determined?

With regard to a temporary spousal support award, there is no precise formula for determining the amount which will be ordered.  The court must use its judicial discretion and take into consideration the ability to pay of the party who is to be paying the temporary spousal support and the present needs of the party to whom the temporary spousal support is to be paid.  The court is required to take into consideration the standard of the parties immediately prior to the time of separation of the parties or the beginning of the marital discord.

How is the issue of whether permanent spousal support is to be ordered determined and if it is awarded how is the amount determined?

When determining whether to grant permanent spousal support and if it is granted, the nature, amount, duration of the payments, the trial court is required to consider fourteen factors.

These factors are:

1. The income of the parties, from all sources, including, but not limited to, income derived from property awarded as part of the property division in the divorce proceeding;
2. The relative earning abilities of the parties;
3. The ages and the physical, mental and emotional conditions of the parties;
4. The retirement benefits of the parties;
5. The duration of the marriage;
6. The extent to which it would be inappropriate for a party, because he/she will be custodian of a minor child or children of the marriage, to seek employment outside the home.
7. The standard of living of the parties established during the marriage;
8. The relative extent of education of the parties;
9. The relative assets and liabilities of the parties, including, but not limited to any court-ordered payments by the parties;

10.  The contribution of each party to the education, training, or earning ability of the other party, including but not limited to, any party’s contribution to the acquisition of a professional degree of the other party;

11.  The time and expense necessary for the spouse who is seeking spousal support to acquire education, training, or job experience so that the spouse will be qualified to obtain appropriate employment provided the education, training, or job experience, and employment is, in fact, sought;

12.  The tax consequences, for each party, of an award of spousal support;

13.  The lost income production capacity of either party that resulted from that party’s marital responsibilities; and

14.  Any other fact that the court expressly finds to be relevant and equitable.

If the court determines that permanent spousal support is warranted, when determining the amount of the award, the court must consider the ability to pay of the party to whom the support is to be paid.

How long does spousal support last?

Spousal support can be for a specified length of time (i.e. 24 months, 48 months, etc), maybe ordered, in the appropriate case to continue indefinitely, or may be ordered to terminate upon the occurrence of a specified event (i.e. remarriage of the payee-spouse or death of either party).  The preference is for the termination of support “at a date certain”, but the court has discretion in making the determination.  The court may order spousal support for a specified length of time and maintain jurisdiction of the support issue so that it can be reviewed again to see if it should continue as is, be modified or terminated.

Can permanent spousal support be modified or terminated?

If the decree that orders permanent spousal support makes a specific provision that permits the courts to modify the spousal support award, the court retains jurisdiction to hear any motion requesting a modification of the existing award.  The court can expressly reserve jurisdiction in its order in a contested divorce matter or the parties can agree, in a separation agreement that is subsequently incorporated into a divorce decree, to make spousal support modifiable.  If there is no provision contained in the divorce decree (or a separation agreement incorporated into a divorce decree) that reserves the jurisdiction of the court to modify the spousal support award, the award is not modifiable.

Because of a change in the law, divorce decrees filed before May 2, 1986, and not arising out of a separation agreement incorporated into a decree, do not have to have a specific reservation of jurisdiction in order for the court to consider a modification or termination of spousal support.

If the court has retained jurisdiction to modify spousal support (or under the other situations described above where the court may modify), it may only do so where the court determines that there has been a material or substantial change in circumstances of either party that could not reasonably have been anticipated at the time of the original decree.  A change in circumstances includes:

• Altered economic conditions (i.e. involuntary decrease in income)
• Remarriage of the recipient;
• Death;
• Entering into a relationship in another state that would constitute a valid marriage
• Post-decree cohabitation in certain situations;
• Payor’s increased ability to pay;
• Retirement; and
• Other circumstances

Posted By: Simone Spence 10/31/09