Spousal Support

Spousal support, also known as "alimony" or "maintenance," refers to periodic payments (usually made on a weekly or monthly basis) by one former spouse to another as set out in a court order or marital settlement agreement. Unlike child support, spousal support is not mandatory. If the parties cannot agree that spousal support should be paid, the court will look at a number of different factors in deciding whether to award support.

Awarding Spousal Support

Though spousal support is frequently requested, it is not always granted. In deciding whether spousal support is appropriate, the court will look at a variety of factors, including:

  • The relative incomes of each party;
  • The earning capacity of each party;
  • Any career/financial sacrifices made be either party to benefit the family. For example, giving up a promising career or college education to stay home and raise children while the other spouse's career flourished.
  • The length of the marriage;
  • Contributions made by the parties to the marriage. For example, one spouse may have worked to put the other through school or may have used their life savings to put a down payment on the marital residence;
  • The number of children living with each party;
  • The parties' standard of living during the marriage.

Types of Spousal Support

Short-term/Rehabilitative/Temporary Support

Short-term spousal support is also known as "rehabilitative" support. This type of support is meant to be paid for a fixed period of time (usually three, five, or ten years), while the receiving spouse gradually becomes more and more self-sufficient. Usually, short-term support is intended to allow the receiving spouse to return to school, undergo job training, or advance in his or her career to the point where he or she can earn a more sufficient income. While the term of spousal support is fixed, both parties retain the right the return to court to ask the judge to extend the period of support or to terminate support payments early (if the receiving spouse has remarried or been granted a significant raise, for example.)

Long–term Support

In contrast to short-term support, long-term spousal support, or "permanent" support, is intended to be paid to a spouse for the rest of his or her natural life. Long-term support is usually awarded in circumstances where the receiving spouse is prevented from earning a sufficient income due to an advanced age or disability. Long-term support agreements usually state that the support payments will terminate upon the death or remarriage of the receiving spouse.

Reimbursement Support

Reimbursement support is typically ordered to repay one spouse for expenses paid out during the marriage. For example, reimbursement support may be ordered or agreed upon in a situation where one party used non-marital funds to purchase the marital residence, put their spouse through school, or maintain the marital estate while the other party was out of work.

Lump-sum Support

Unlike other types of support, lump sum support is paid all at once, rather than over a period of time. For example, a divorce decree may award one party $50,000, to be paid within 60 days following the entry of the divorce decree. Because lump-sum support payments can have a negative effect on the tax liabilities of the receiving party, lump-sum payments should never be agreed to without first consulting an accountant or tax attorney.

Modification of Spousal Support

When spousal support is ordered, either through a marital settlement agreement or a court support order, the order will generally state whether the support is short-term or long-term, the number of years the support is to be paid, the conditions on which the support will terminate (death, remarriage, etc.), and whether or not the support is "reviewable."

Reviewable support can be modified by the court upon the petition of either party. The paying spouse can ask the court to reduce the amount of support paid, terminate the support, or reduce the number of years for which the support is to be paid based upon a change of circumstances in the life of either party. For example, a court may reduce the amount of spousal support if the paying spouse has been laid off or has been injured and is unable to work. On the other hand, the receiving spouse may ask the court to increase the amount of support or the number of years support is to be paid based on, for example, a dramatic increase in expenses or to help defray the cost of higher education. As long as the spousal support is reviewable, a modification of support is within the discretion of the court.

Non-reviewable support, however, cannot be changed or modified in any way (other than by agreement of the parties) once the final divorce decree has been entered. Often, the paying spouse will agree to a higher support amount in exchange for an agreement that the support be non-reviewable. Non-reviewable support agreements sometimes contain a clause stating that the receiving spouse forfeits the remaining support payments in the event he or she attempts to modify spousal support.

Spousal Support and Taxes

Typically, alimony payments reduce the income of the paying party and increase the income of the receiving party for tax purposes, unless otherwise specified in the divorce decree. Accordingly, receiving spouses may wind up with such an increased tax liability that the advantage of receiving spousal support is greatly reduced. Accordingly, it is advisable to consult an accountant or tax preparer to discuss the effects of spousal support prior to reaching an agreement.

Keeping Health Insurance Benefits

While most states have laws prohibiting a spouse or employer from removing another from their health insurance policy up until the date the divorce is finalized, there is nothing that protects a spouse from losing health insurance immediately upon entry of the divorce. While employers are required to offer COBRA insurance to divorced spouses no longer eligible for health insurance, the premiums are often too high to be practical.

If you are unable to obtain your own health insurance through public aid or your employer, the solution may be to ask the court to have your former spouse contribute to your monthly medical premiums by way of spousal support. In addition to general short or long-term support, the court may order the paying spouse to pay your insurance premiums until such time as you are able to get affordable health insurance.

Social Security and the Ten-Year Rule

If your marriage lasted ten years or more, you are entitled to receive one-hundred percent of your own social security benefits or fifty-percent of your ex-spouse's benefits, whichever is greater. However, in order to be entitled to spousal benefits, the party seeking to collect must be a) at least sixty-two years old, b) divorced; and c) not remarried. If you choose to receive fifty-percent of your ex-spouse's benefits, his or her social security benefits will not be reduced as a result of your election.

Enforcing Spousal Support

Like any other part of a divorce decree, the obligation to pay spousal support is enforceable before the court. If the payor spouse does not meet his spousal support obligations, the court, upon petition by the receiving spouse, may find the payor spouse to be in dereliction of his obligation and hold him or her in contempt of court. In addition to forcing the payor spouse to meet his support obligation by garnishing his pay check or even having him jailed, the court may order the payor spouse to pay the cost of the receiving spouse's enforcement of the divorce decree (i.e., attorney's fees).

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