Violet had known that she and her husband had grown apart. But she hadn’t expected divorce. Violet had been their homemaker all their adult lives, from when her husband finished college and went through graduate school, all the way through his professional career, while she raised their kids. As soon as they were empty nesters, Violet knew that their marriage had lost its way, but again, she hardly expected divorce. What was she now going to do, with divorce looming? And how was she going to support herself?

Definition

Spousal support, formerly known as alimony, involves periodic payments one spouse makes to the other after divorce, often monthly, for as long as the receiving spouse needs to adjust to the loss of the other’s income and means. Spousal support presumes an imbalance between the earnings of each spouse. Spousal support is most common in divorces in which one spouse has a substantial income out of a secure career or profitable business, while the other spouse is a homemaker without paid employment or with only part-time work earning a modest income. The spouse receiving the support must usually demonstrate an inability to make ends meet without the other spouse’s support. If, instead, the spouse claiming support has an income sufficient to maintain a household or a valuable degree, skill, and available job and career, the court is unlikely to order spousal support, except in special instances or for a brief period to adjust to the loss of the other spouse’s income.

Children

Spousal support isn’t child support. Spouses with no children between them or with only adult children who no longer need their support may still pay and receive spousal support. A spouse with custody of the couple’s minor children and receiving child support may also receive spousal support, although the child support can have the effect of supporting the custodial spouse, may diminish or eliminate the need for spousal support, and may significantly decrease the likelihood of receiving spousal support. Younger spouses with minor children also have shorter marriages and are generally more able than elderly spouses to adapt to the divorce, gain employment, or remarry, eliminating the need for long-term spousal support. Child support without additional spousal support is thus more common than the custodial spouse receiving both child support and spousal support. In theory, child support and spousal support reflect different needs. In practice, though, one form of support can address or satisfy the need for the other form of support.

Interim

The family court may order interim spousal support at the divorce proceeding’s outset and until the final judgment of divorce. Often, divorcing spouses are able to manage household finances during the weeks or months of the divorce proceeding, without needing an interim order for spousal support. The spouse earning the income may, for instance, continue to pay the mortgage or rent, utilities, and other household expenses for the marital home where the other spouse continues to live, whether the spouses have just separated or are still residing together. But in other instances, the spouse without an income may have moved out of the marital home, needing support to establish and maintain a separate home. Or the spouse with the income may have moved out and refused to continue paying the marital home’s expenses. In those cases, the spouse needing support may petition the family court for an interim order, requiring the judge to hold a hearing, rule on the request, and potentially order the requested support.

Temporary

Spousal support doesn’t have to be permanent, meaning life long, after the divorce. Spousal support ordered in a final judgment of divorce may be for a specific temporary period that the receiving spouse needs to get back on the spouse’s feet. An example would be if the receiving spouse is finishing a program of education that will qualify the spouse for gainful employment on graduation. Spousal support might then last only until graduation. Another example would be if the receiving spouse was previously employed or had a business, but the spouse gave up the employment or business for the marriage, and the spouse needs time to regain employment or restart a business. In either case, the parties may agree to, or the judge may order, temporary support for one year, two years, five years, or a similar period reflecting the receiving spouse’s need to adjust.

Indefinite

The parties may alternatively agree to, or the court may order, spousal support for an indefinite period. The indefinite period may have terms and conditions associated with it, suggesting when the spousal support may end. An example would be if the receiving spouse had suffered an injury or illness disabling the spouse from work. The judgment of divorce may provide that spousal support would cease on the spouse’s recovery from the disability preventing employment. Another example would be if the receiving spouse is unable to qualify for or find gainful employment, for lack of current skills or an expired license. The judgment may provide that spousal support would cease on the spouse’s regaining the license to qualify for a return to employment or, alternatively, regaining employment after diligent search. Alternatively, the judgment may not attach terms and conditions but may still make it reasonably clear that spousal support is for an indefinite term, depending on the receiving spouse’s circumstances.

Permanent

The judgment of divorce may alternatively award permanent spousal support, referring to life-long support for as long as the receiving spouse lives. Courts generally reserve permanent spousal support for special cases such as when the receiving spouse has suffered a disabling illness, injury, or other decline during the marriage and has no prospects for recovery and future employment. Spouses owe a duty of support to one another during the marriage. If one spouse suffers a debilitating condition, the other spouse cannot generally relieve that duty with a swift divorce, thereby shifting the obligation of support to the disabled spouse’s other family members or to the taxpayer through government programs. The court may instead order permanent spousal support. Permanent spousal support may also be appropriate after a long marriage during which one spouse was the homemaker and that spouse, now elderly, has no prospect for gaining employment. Judgments intending to provide permanent spousal support, whether negotiated between the parties or imposed by the court, generally expressly label such support non-modifiable, indicating its permanence. In the absence of that designation, the court may later find that the spousal support was only indefinite and may, on the request of the payor, reduce or eliminate it on a change in circumstances.

Remarriage

Spousal support orders, whether negotiated by the parties or imposed by the judge, routinely provide for temporary or indefinite spousal support to end on the receiving spouse’s remarriage. Remarriage implies a new household with the two newly married members living together, one of whom likely has income to maintain the household. The former spouse paying spousal support would reasonably presume that the new spouse taking the former spouse’s place would take on the former spouse’s duty of support. And so judgments of divorce routinely provide for spousal support’s termination in the event of remarriage. The exception may be in the case of permanent spousal support awarded in consideration of the receiving spouse’s relinquishment of a business interest or other special interest. Courts do not generally modify support orders that the parties have agreed or the court has previously determined are non-modifiable. Parties may negotiate for the arrangement they think best, and the judge may likewise consider any matter influencing the equities. Just be sure that the judgment of divorce accurately reflects your agreement and intent.

Termination

The party paying spousal support may, in the event of a change in circumstances, seek to terminate interim, temporary, or indefinite spousal support. Examples may include if the party paying support loses a job or business and its income, or suffers a work-disabling condition, or if the party receiving support gains a job or other income sufficient to pay for that party’s living expenses. Remarriage of the receiving spouse may be another change in circumstance warranting termination of spousal support, if the judgment of divorce doesn’t already say so. The party seeking to terminate support would file a motion with the court, the judge would hold a hearing, and the judge would rule whether support should terminate or adjust. Unless the judgment expressly labels the spousal support to be permanent and non-modifiable, courts generally have authority to modify their prior support orders.

Property

In some cases, a division and award of substantial marital property may obviate the need for spousal support. At some point, a marital estate can be large enough for half of it to support a non-income-earning spouse after a divorce. The spouse who receives millions of dollars in a property division probably doesn’t need a few thousand dollars more each month in spousal support, especially if the property division is of income-generating assets or assets that the spouse can readily sell for ample support. In negotiations between the parties over the terms of a final judgment of divorce, or in the judge’s imposed terms where the parties cannot agree, spousal support is in that sense often a tradeoff between more or less of a property division. In some cases, such as where the value of the marital estate is tied up in a single indivisible business, it makes more sense for the income-earning spouse to pay spousal support, while in other cases it makes more sense for the parties to divide readily divisible assets and be done with one another financially, forgoing any continuing spousal support. Determine what is best for you, and seek that outcome through negotiation or advocacy in the judge’s hearing on support.

Amount

Determining the amount of spousal support works a little like determining the amount of child support. The major consideration is the relative income of the divorcing spouses. The greater the imbalance in incomes, the greater the likelihood of spousal support and the greater its probable amount. But spousal support is not necessarily that directly tied to incomes. Spousal support isn’t, in other words, expressly to balance incomes. Spousal support is instead to ensure that a spouse without sufficient income on which to live does not go destitute. Thus, if one spouse has a vast income and the other spouse no income, the spouse without income may receive a significant monthly spousal support sum enabling that spouse to maintain a lifestyle somewhat similar to the spouse’s married lifestyle, but nothing like half or even a significant percentage of the other spouse’s vast income. Spousal support isn’t science and mathematics. It is instead equity, taking into account all material factors, like other matters in divorce.

Factors

You should understand from the above discussion that few things are certain about spousal support. Spousal-support rulings are generally significantly less predictable than either child support, which formulas and tables can determine or influence, and property division, which may begin from a presumption of equal division of marital assets. Factors that a judge may consider when ruling on a spousal-support request include the length of the marriage, the relative employability of the parties based on their education, licenses, work history, and current employment, the requesting party’s need for support, the parties’ assets and debts affecting ability to support, the standard of living to which the parties are accustomed in the marriage, the parties’ contributions to the marriage, and to a limited degree, the conduct of the parties in the marriage including fault in bringing about the divorce. The unpredictability and complexity of spousal support warrants retaining skilled attorney representation to address it, no matter whether you are the requesting or responding spouse.

Insurance

A spouse intending to rely on the other spouse’s financial support after the marriage terminates in a divorce judgment is wise to consider securing that support interest against sudden loss. Spouses negotiating substantial support obligations often negotiate at the same time for insurance on the life of the paying spouse, sufficient to secure the future payments in the event of the paying spouse’s death. Divorce judgments ordinarily terminate the former spouse’s beneficiary rights on life insurance, whether by their own terms or by statute. Securing future spousal support with life insurance would be an exception where the parties may expressly provide for continued life insurance benefiting the former spouse receiving or expecting to receive spousal support payments. Parties may also negotiate and agree over health insurance and other benefits that can help support the needful spouse after divorce, as a later chapter addresses.

Key Points

• Courts award spousal support to maintain a household after divorce.

• Spousal support may be interim during the divorce proceedings.

• Spousal support may be temporary for a specific period after divorce.

• Spousal support may be indefinite depending on conditions.

• Spousal support may be permanent if circumstances warrant it.

• Spousal support may terminate on changes unless non-modifiable.

• Spousal support typically terminates on remarriage.

• A substantial property division may satisfy the support need.

• Factors influencing the support amount include incomes and need.

• A spouse receiving support may secure the interest with life insurance.

Read Chapter 14.