MAINTENANCE: HOW IS IT CALCULATED, HOW CAN IT BE REDUCED, and WHEN DOES IT END?
by Claudia J. Weaver, Cordell & Cordell, P.C.
Alimony, now commonly referred to as maintenance or spousal support, is often a significant concern of those getting divorced. We have a public policy in this country that when a husband and wife get divorced, neither party should be left unable to care for herself or himself.
Spousal support used to be based on the idea that the husband had the obligation to support his wife, and if he divorced, he still had a continuing obligation to support her. Obviously, this idea doesn’t make sense now that more wives work, now that gender equality is progressing, and now that many states have no fault divorce. In 1979, the Supreme Court of the United States ruled it unconstitutional for a state statute to allow spousal support for wives only.
Today, based on the circumstances of the parties, either the husband or the wife can get support from the other spouse.
HOW IS SPOUSAL SUPPORT CALCULATED?
Spousal support awards vary from state to state and even within the state, guidelines vary from county to county and sometimes even among judges. There is a high level of inconsistency in spousal awards because most state statutes do not address specifically how the award should be calculated.
In fact, in some jurisdictions, it can be difficult to predict what the spousal support would be because there are no guidelines. However, in an effort to reduce such inconsistency, many jurisdictions have adopted guidelines that provide an equation to figure what amount should be paid.
Some jurisdictions have adopted a calculation that considers the incomes of the parties, calculating the difference in incomes and awarding a percentage of that difference. Other jurisdictions have adopted a method that looks at both the incomes and expenses of the parties, figures what’s left over when expenses are paid and the award is a portion of that balance.
Another way spousal support can vary is based on whether there are minor children born of the marriage. Some jurisdictions have calculations that provide for a reduced amount of support if there are minor children.
Another consideration of a spousal support award is how long it will last. The duration of spousal support varies like the value of the support. It is usually based on the duration of the marriage and the longer the marriage, the longer support can be paid. However, some states provide that support awards for spouses can be paid in lump sums, on a monthly basis, a yearly basis or other time frame. There are tax consequences to consider in each of these situations, so it’s incumbent upon you to evaluate these possibilities with your attorney and tax advisor.
The bottom line is that in order to be prepared for the possibility of spousal support, you have to be familiar with your state statutes and whether your specific venue or jurisdiction has adopted any guidelines.
It is also important to realize that most state statutes provide a list of factors to consider in making an award of spousal support. These lists usually include the age of the parties, which tends to show whether the individual is at the beginning or end of the working life and his or her means to acquire property; the duration of the marriage; whether there has been a dissipation of assets, which evaluates whether one party may be guilty of wrongdoing; the overall financial situation of the parties; other financial obligations; the parties’ educations, skills or abilities in the work force, in other words, the parties’ earning capacities; and the contributions of each party to the marriage, both financial and otherwise. These lists of factors are important because they are the source of strategies to reduce maintenance.
VOCATIONAL EXPERT: A STRATEGY TO REDUCE SPOUSAL SUPPORT
Awards of spousal support are often inevitable; however, there are ways to argue for reductions in the amount you may have to pay. A common argument that should be made when facing a maintenance obligation deals with the earning capacity of the other party. Considering that the maintenance amount can be based on the income of the parties, what happens when the other party has no income? Courts will sometimes recognize that most people are capable of minimum wage earnings; however, if the other party has a degree or some other specialized skill set, it should be argued that the party’s income potential is higher than minimum wage. For example, in a case with a stay-at-home mom and an entrepreneurial dad, he may have significant income to report while she reports no income. But if she helped with the business projects undertaken during the marriage by bookkeeping or accounting or in any other way, she obviously has a skill set that can be used in the work force despite the fact that she has not been employed.
It can be difficult to ascertain what amount of income should be imputable to the individual that has not work since being married. A vocational expert, or a vocational rehabilitationist, can be used as a consultant or a witness to testify at trial as to the earning capacity of a party. These vocational experts have the knowledge and experience necessary to determine what an individual can earn based on that person’s previous work and skills. There is a cost associated with using this type of consultant or witness, but compared to the cost of unnecessarily high maintenance, it may be worthwhile to explore that option.
WHEN CAN I STOP PAYING MAINTENANCE?
Most state statutes list several instances that trigger the end of spousal support. If the party receiving maintenance gets remarried, the support will likely stop. There’s no reason to continue supporting an ex spouse when that person has a new spouse to assume that responsibility. For the same reason, some jurisdictions provide for the termination of maintenance when the receiving spouse cohabitates with another individual in a marriage like relationship. Generally, if either party dies, spousal support will terminate. There are a myriad of other reasons that may terminate or reduce support, but basic idea is that if there’s no longer a need for support, then you can argue that it should terminate.
If you’re ability to pay support has diminished or disappeared, then you can also argue that maintenance should terminate, or at least reduce. Your company downsizes and you lose your job after 25 years. Chances are after that many years of service, your income was substantially higher than what it’s going to be starting over at a new company. This involuntary move is totally different than getting fired from a job for wrongdoing and then deciding that you only want to work part time because you’re tired. Understand that your previous income can be imputed to you for wrongdoing or if your circumstances would allow you to still earn substantially the same amount of money. On the other hand, if you’ve been forced into a position with less earning capacity than your previous position, then basing your obligation on your previous income, which is 50% higher than what you earn now, is far from fair.
Spousal support is a complex issue, and the outcome will vary in each case based on the facts and circumstances therein. You should prepare yourself for the reality that support is often times inevitable, but armed with the shield of knowledge you can protect yourself from having to pay more than you should.
Claudia J. Weaver is an Associate Attorney with Cordell & Cordell, P.C., in Overland Park, Kansas. Ms. Weaver practices exclusively in the area of domestic relations.
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