Recently on our legal forum a user asked, “I was married for fifteen years. I was a full-time stay at home mom for the duration of the marriage. I supported my husband and three kids while my husband went to medical school, completed his residency, and became a full-time medical professional. Fifteen months on the job he fell in love with a nurse and told me he was leaving me. I have not worked in over a decade and still have several young children at home. I am not going to lie; I am scared about how I will take care of myself. Will I be entitled to California spousal support?”
Recently on our legal forum a user asked, “I have been married for thirty-two years. My husband is a cardiac surgeon in Texas. I have supported him throughout our marriage. I stayed at home, tended to the children, cooked and cleaned, and did everything I could to help him become successful. He came home last night and told me he has had an affair with an internist at the hospital and wants a divorce. I am devastated. I have no job experience, and I am not sure what I am going to do. I am wondering whether I am entitled to spousal support in a Texas divorce?”
Ground breaking legislation passed in 2014 which has provided Colorado divorcing couples with a formula for calculating spousal maintenance for the first time in the state’s history. Colorado instituted the guidelines with the goal of standardizing spousal maintenance payments. At question was how the state of Colorado could eliminate inconsistency in Colorado spousal maintenance orders and eliminate unpredictable awards.
What is meant by the term relative income and how does that factor into spousal support and alimony payments?
Whether you are dealing with a divorce for the first time or facing a modification years after a judgment, you should understand how courts determine the amount of spousal support or alimony that the other spouse is obligated to pay. In California, for instance, spousal support orders are based on a number of factors set forth in California Family Code Section 4320. Basically, the Court considers the marriage’s standard of living, the parties’ relative income, and need for support. Unlike with child support, a change in circumstances alone is not sufficient to later request modification of an order. The spouse seeking modification must show either that their reasonable needs were never met by the initial order or that their needs have increased because they are no longer able to support themselves. This means that one has to show that the amount of spousal support one was receiving was not enough at the beginning or that it is no longer enough now that one’s needs have increased.
So what the heck is relative income anyway? Let’s explain it like this:
Comparing two spouses, who earns more or who has a better-paid job? Is that the spouse that earns more? Or is that the spouse who works less? Let’s be scientific about it, or at least mathematical. In first place comes the level of income as a measure how well paid the job is. This is called absolute income. If Bob monthly earns $2600 and Sue earns $3000, it is obvious that Sue earns more and has a better paid job. Sue’s absolute income is higher than Bob’s. But if Bob works 40 hours per week and Sue is working 50 hours per week, it appears that Bob is earning more per hour. Bob is earning $16.50 while Jane is earning $15. This means that Bob’s Relative income is higher than Sue’s.
So, it’s that relative income that is used to assess quality of life, and thus spousal support. In states like New Mexico, for instance, the rule of thumb is no spousal support unless one spouse makes at least 67 percent more than the other. (This is the “30-50” rule: 30% of the higher income compared to 50% of the lower income.)
It’s not just salary that makes up relative income. There can be other factors. Often there are complex issues in determining a spouse’s correct income for the purposes of calculating support. A spouse may be working less diligently or not working at all to deflate or decrease their income, in order to try and escape spousal support payments. In other cases, a spouse may be receiving job benefits such as a company car which should be treated as income, or may be operating their own business and running personal expenses through the business to decrease apparent income.
Spousal support is based on the premise that both spouses have an absolute obligation to support each other during their marriage and spousal support is the extension of that obligation after separation or divorce. States like Nevada have relatively vague statutes regarding spousal support and simply list factors that the judge should consider in determining the amount. These factors include but are not limited to: length of marriage, health of the parties, age of parties, relative income, and future financial prospects. Spousal support is a challenging aspect of family law. Particularly in cases where there are extenuating circumstances, you have the right to a qualified attorney to allow your voice to be heard by the court. This website is a great resource for you to help find a legal expert in this area, in your state.
When spouses separate , the court sets the amount of financial assistance to be paid to a spouse in need by the other spouse. The objective is to maintain the family’s standard of living to the extent possible until the divorce. Spousal support orders are in nearly every case based on court-approved schedules or guidelines, and can vary from state to state. A local divorce attorney can be of great assistance in understanding these schedules, or sometimes called calculators.
The available income of the paying spouse limits the amount the court can order. Struggling to maintain two households on the income previously needed for only one often means there’s not enough money at the end of the month to pay all the bills. The most important considerations about maintaining a standard of living are providing adequate food and shelter. Spousal support schedules are used to quickly and objectively determine the amount that should be paid.
Some prudent advice when facing the possibility of paying spousal support is to get your finances in order first. Avoid taking out new loans, pay off bills as far in advance of the separation as possible. Setting up the family budget sensibly will help meet cash needs during the divorce process and lower the permanent support orders, once all the factors of finances are considered.
If you foresee that you will need support as a result of a divorce, examine your existing situation to make sure you aren’t neglecting valid needs. Your checking account and other records like credit card statements will show what you spend monthly on food, housing, clothing and other necessities. This will ensure you won’t get stuck with a low support order because your spouse proves it doesn’t take as much as you claim to maintain the household. The support receiver has the burden of proving that more is needed, and how much the other spouse has to pay.
You and your divorce attorney should review the temporary support schedules of your state well in advance to be prepared for the amount the court is likely to order. While they provide a quick and uniform answer, since generally only net income is considered and expenses ignored unless in certain special categories. Net income is defined as gross income less mandatory deductions for items such as taxes and retirement. It’s like adding excess withholding for taxes and voluntary deductions to your take-home pay. It’s important to remember that adjustments to the family budget will change the amount of temporary support if the court will allow you to show the full amount is not needed, or is not enough, due to special circumstances.
Spousal support guidelines vary by state, but generally include the following factors: the length of the marriage, the age and health of each partner, the standard of living established during the marriage, each partner’s current level of income and earning potential, non-paid service preformed for the marriage , the sacrifices one spouse made so the other could further education, training, or their career, and other factors. In 29 states spousal support guidelines also allow fault to be considered with regards to eligibility for spousal support. If the lower income spouse committed adultery or some other marital wrong, they may be disqualified from spousal support privileges.
Two things in life are certain – death and taxes. But what about alimony?
In some states, a divorce court could award a spouse permanent alimony, or permanent periodic alimony, meaning the award of payment continues until the death of either spouse or the remarriage of the receiving spouse. In this sense, permanent alimony does not go on forever, but can be a great obstacle to divorced spouses that want to remarry because of the financial burden to provide indefinite support to their exes.
Permanent periodic alimony or permanent alimony is based on one spouse’s need for support, and the other’s ability to pay. The ability of a spouse to pay is based upon their present earnings, not on future earnings potential. Just like child support, alimony is often paid through divorce court ordered paycheck deductions.
Therein lies the problem – the divorce court has almost unbridled discretion in considering the nature of the permanent alimony payments, as long as it considers factors like the duration of the marriage, the couple’s standard of living during the marriage, the ages, physical and emotional health of the spouses and the financial resources of the spouses, combined and separately. Unless the divorcing couple can arrange support agreements in mediation before the divorce begins, permanent periodic alimony can become a very contentious issue, and horror stories abound.
That’s why there is a groundswell of grassroots movements to reform permanent or permanent periodic alimony laws, known as alimony modification, in the United States, led by states like Florida, Massachusetts, New Jersey and Connecticut. Groups in those states and in other parts of the country contend that times have changed, and the divorce court must change, too. Alimony modification should evolve as society has evolved, they say. It’s not the 1950’s “Father Knows Best” or the 1960’s “Mad Men” eras anymore. More women are in the workforce now and more wives are the chief family breadwinners, making more than their husbands, and unlike before, it’s not just the women that need support from their husbands, but the mirror image.
So, back to the question in the title of this post – is permanent alimony permanent? The answer has to be, slowly but increasingly, no. Alimony modification in the divorce court is underway across America.
Under the prevailing law in most states, permanent alimony can only be reduced or terminated altogether by the divorce court if there is a Lepis, or change of circumstances. That’s the only circumstance for alimony modification. One of the foundations of family law in New Jersey, for instance, is that there must be changed circumstances to justify a permanent alimony modification. There are many cases where a spouse would not satisfy the Lepis requirements to justify a change in permanent alimony or permanent periodic alimony payments. If a spouse can’t satisfy Lepsis they could file an application with the court to reduce or terminate permanent alimony or permanent periodic alimony payments based on the principles of equity and fairness. If some type of life event or events occur to make the enforcement of a property settlement agreement neither fair nor equitable, then a strong argument can be made that it is the responsibility of the court to review the permanent alimony order.
Florida Alimony Reform, or FAR, the state’s leading alimony reform organization – and the largest such group in the country – vowed to press on fighting to update Florida’s “antiquated” alimony laws, despite the Florida State Senate’s failure to bring the Florida State House of Representatives-passed reform bill, HB 549, to the Senate floor in the final week of the 2012 legislative session.
“I’m hugely disappointed on behalf of our members,” said the group’s spokesman, Alan Frisher, a Certified Divorce Financial Analyst, in local media. “After the House passed the bill that we supported, by a vote of 83 to 30, I expected the Senate to follow suit. But our opposition had another plan.” The effort’s primary opponent is the Florida Bar Association’s Family Law Section, headed by attorney David Manz. Last month in the New York Times, Mr. Manz was quoted as saying that alimony reform advocates are a “very vocal, persuasive minority.” “Florida is very much behind the times in its alimony laws,” said Mr. Frisher. “And despite opposition from the Family Law Section, many Florida divorce lawyers know this and believe there should be serious revisions to current law.”
Mr. Frisher half agreed with Mr. Manz’s assessment. “We are vocal indeed, because the state’s permanent alimony laws are backwards, out-of-touch and hugely unfair to everyone in this picture but the lawyers. As far as being a minority, every divorce affects the entire family, and when alimony never ends and payers lose their houses and go bankrupt because they can’t afford their payments, the consequences are devastating to children, grandchildren, stepchildren and new spouses. Even when circumstances are not that dire,” Mr. Frisher continued, “the animosity between ex-spouses over lifetime alimony is terribly destructive.”
Florida alimony reform proponents want their state’s laws “moved into the 21st Century” and say that ending alimony payments after a funeral is “archaic” and the “till death do us part” part of the marriage vows should not include alimony checks.
FAR says they intend to support future legislation that will end permanent alimony in Florida and replace it with alimony based on the length of the marriage and the income of the parties, as the new law does in Massachusetts. (We wrote about the Massachusetts law in this post.) The emphasis will be on generous transitional alimony for the lower earner, with the goal of making lower earners self-sufficient, as is the case in most states throughout the country.
In addition to limiting alimony, FAR says they support provisions that would lower or end alimony when a recipient is cohabiting (living with someone else) for an extended period. Under current Florida law, cohabiting ex-spouses may collect alimony until death, even if they are living permanently with new partners. FAR also says they support establishing a “meaningful right to retire” so that alimony payers are not forced to work until death to make their payments (as they are now), even after divorced couples have divided marital assets and given the lower earner assets, pensions, and the Social Security payments that all lower earners receive after ten years of marriage.
This Florida alimony reform battleground will be interesting to keep an eye on when the next legislative session convenes March 5, 2013.
On March 1, alimony reform, in process since 1974, became law in the State of Massachusetts, evolving the payment of alimony in a divorce from the “one size fits all” model criticized by many to a more flexible approach with formulas for calculating alimony payments and creating four categories of alimony.
As it turns out under the new alimony reform law, actually fewer people will be receiving alimony. No alimony will be awarded in Massachusetts if child support is ordered and the combined income of the divorcing parties is less than $250,000.00. This is a major change from previous Massachusetts law, where alimony and child support were awarded together. Under the new law, most alimony awards will end by the time the recipient reaches age 67. The old law did not have a termination date – unless the parties agreed to a specific termination. The new alimony reform law imposes termination dates on most existing alimony awards. The law permits lifetime alimony for marriages that lasted more than 20 years, but all other marriages have a formula for the length of alimony awards.
Here is how alimony duration is decided under the new formulas:
- Long Term marriages (greater than 20 years): Alimony will end at the age of retirement as defined by the United States Social Security Act (age 65)Marriages of 5 years or less: The maximum alimony term is 50% of the number of months of marriage
- Marriages of 10 years or less, but greater than 5 years: The maximum alimony term is 60% of the number of months of marriage
- Marriages of 15 years or less, but greater than 10 years: The maximum alimony term is 70% of the number of months of marriage
- Marriages of 20 years or less, but greater than 10 years: The maximum alimony term is 80% of the number of months of marriage
Four Categories of Alimony
In Massachusetts, under the Alimony Reform law of 2012, there are four categories identified and defined.
- General Term Alimony is simply a periodic payment of support to one spouse to another.
For marriages of five years or less the following types of alimony may be applied:
- Rehabilitative alimony is to support a recipient spouse who is expected to become self sufficient within a specific time frame, such as after job training or re-employment.
- Reimbursement alimony is to compensate a spouse for assistance in enabling another spouse to obtain a degree or special employment training.
- Transitional alimony is for the purpose of enabling a spouse to transition to a new lifestyle or location due to the divorce.
- Rehabilitative, Reimbursement and Transitional alimony are all defined as periodic or one time payments, considered after a marriage of five years or less. They are all seen as a means to an end and for the particular purpose of enabling a spouse a short period of time to become independent.
The History of Alimony
Legal dictionaries define alimony as a payment a family court or divorce court may order one spouse to pay another when that couple divorces.
The purpose of alimony is to avoid any unfair economic consequences of a divorce, even after the property is divided and child support, if any, is awarded. Courts set few specific guidelines to attaining this broad goal: instead of telling judges how and when to award alimony, most courts simply grant them broad discretion to decide what is fair in each case.
The concept of alimony actually goes back thousands of years, to Mesopotamia and Babylonia. Alimony has been discussed in ancient legal texts such as the Babylonian Code of Hammurabi and the Code of Justinian from the Roman Empire. Alimony in the United States has roots in English ecclesiastical, or church courts, that awarded alimony in cases of separation and divorce. Alimony Pendente lite, or temporary alimony, was given as a placeholder until the divorce decree, based on the principle of the husband’s duty to support the wife during an ongoing marriage.
The term alimony comes from the Latin word alimonia, meaning “nourishment or sustenance”,which, interestingly enough, gave birth to the word alimentary, relating to food, nutrition and digestion. The Scots had the law of aliment, which was a rule of sustenance to assure the wife’s lodging, food, clothing, and other necessities after she was divorced.
How alimony is decided varies greatly around the world, and from state to state in the United States. For instance, states like Texas, Montana, Kansas, Utah, Kentucky and Maine, give quite explicit guidelines to judges on the amount of alimony to be paid and how long it must be paid after a divorce. In Texas, Mississippi and Tennessee for example, alimony is awarded only in cases of marriage or civil union of ten years or longer and the payments are limited to three years unless there are special, circumstances. Also, the amount of spousal support is limited to the lesser of $2,500 per month or 40% of the payee’s gross income.
In Delaware, spousal support is usually not awarded in marriages of less than 10 years. In Kansas, alimony awards cannot exceed 121 months. In Utah, the duration of alimony cannot exceed the length of the marriage. In Maine, Mississippi, and Tennessee, alimony is awarded in marriages or civil union of 10 to 20 years and the duration of the payment is half the length of the marriage in most cases.
Massachusetts, California, Nevada and New York just list the “factors” a judge should consider when determining alimony. These factors include the length of the marriage, who’s at fault, the age of the spouses at the time of the divorce and the outlook for the financial future of the spouses, for example. In these states, the determination of duration and amount of alimony is left to the discretion of the family court judges who must consider case law in each state.
In Massachusetts, Mississippi, Texas and Tennessee, for example, there are 135 Appellate cases in addition to 47 sections of State Statute that shape divorce law. As a result of these Appellate Cases, for example, Massachusetts and Mississippi judges cannot order an end date to any alimony award. Most alimony awards in the states are made for life, usually, regardless of the length of the marriage or civil union.
One thing is certain in life and that is change is a constant. And so it is in divorce as well.
Changes in divorce agreements are called modifications. A couple or either party in a divorce may find it necessary to revise their agreement due to changes in circumstances. Some examples of these:
- you’ve had a change in your financial or life situation
- parents of children involved in divorce are moving
- a change in alimony agreements
- a change in how property will be provided or debt dispersed
Divorce modifications arise when the order that was created when the divorce was finalized needs to be changed or modified. Throughout a divorce, the court will split and divide money and property, assets, and many times,custody of the children. All of these things are decided before the divorce is finalized, and then written in a final order, but, since circumstances can often change, people may file for a divorce modification to comply with these changes. Here’s an important point: Divorce settlements don’t always have to be permanent.
Before these changes can be put into action, the ex-spouses have to prove why the changes should be made. This can be providing a stable living condition to obtain custody, or a salary raise for the ex spouse, in which the other spouse deserves more in child support. An appeal is filed to the court, and evidence to support the changes must be provided. The judge or court will then consider the changes, based on the information provided. Having factual, useful, meaningful information is your best chance at success.
If you are unhappy with your divorce settlements, and are interested in divorce modifications, contact your divorce attorney about filing. They can help assist you with pursuing more alimony, more child support, or help you obtain custody of your child through the divorce modification process. An divorce attorney will have the best advice and guidance for you to follow. We have many resources for you here on DivorceAttorneyHome.com.
The first step for divorce modification is to consult a lawyer having experience with it. Ideas will be provided by the lawyer based on the clients’ situations. Paperwork must be filed with the court for changes immediately, as quickly as possible, because until the modification is performed, any alimony or other payments should be continued. The most important thing for a divorce modification is the “strong change” reason for the modification. Many people think that unemployment will automatically remove the responsibilities of spousal or child support settlements, but, sadly, this just isn’t true. The situation of the individual will be thoroughly analyzed by the court to conclude whether the change in the income or the situation requires the modification. Payments should be made by the individual until advised by the judge of the court.
If the former spouse gets married once again and starts earning a large amount of money and still the divorcee is paying the maintenance or alimony fees to the former spouse, the court may consider reducing the payment. If you become handicapped or unemployed, the child support payment will be decreased. Even if the child support charges are decreased; the individual will not be paid back the amount that they have already paid. This method is not retroactive. The increase in the child support payment is retroactive. This increase will not affect the support payment of other children in case if you have more than one.
If the written divorce agreements mention that the payments should not be modified, then the individual has to face more troubles. However, the strong reasons such as unemployment or other important hurdles will be helpful in decreasing the payments. The other reasons for the divorcees to approach the court once again after divorce includes a modification in the custody or visitation, place shifting of one of the parents, custody enforcement and alimony or child support regulations. Property partitions are usually performed at the end. Redistribution of the property will not be performed by the court which was divided by the mutual agreements or by the court itself.
Legally divorce settlements involve support and custody of child, properties and loans, support for the spouse, pension accounts and retirement amounts. The rule for the partition of properties varies from state to state in United States. Usually property partitions are performed based on two rules including the property of the community and equal dispersion. The property which belongs to the couples equally and divided equally at the time of divorce is called as the community property. Some of the states in which the community property is being followed include Louisiana, Nevada, New Mexico, Arizona, Wisconsin, Texas and several other states of United States.