Spousal support, also known as alimony or maintenance, is not a given right in many states but it is frequently employed by the courts. Therefore, you should not go into your divorce simply expecting or assuming you will receive spousal support. You have to show that it is necessary. The judge will evaluate whether the spouse who wants maintenance will lack sufficient property after the divorce to provide for his or her minimal, reasonable needs. If this evaluation is favorable, then one of two specific factors have to be met. The court normally asks these two questions in making its determination as to whether award spousal support.
First, was the spouse convicted of a crime involving family violence within the two years prior to the filing of the divorce or while the divorce is pending? If this is the case, then the spouse who was abused may be allowed to receive support.
Second, if the marriage lasted ten years, is the money needed to maintain a reasonable standard of living for the non-paying spouse? This is the most common form of spousal support request, but the spouse has to show that they tried to get a job and were unsuccessful or that they tried to get job training and were unsuccessful. And the efforts have to be sincere. They simply cannot be half-hearted attempts.
Alternatively, the spouse can also receive support if that spouse is tasked with caring for a child of the marriage who has a mental or physical disability, and the spouse who is doing the parenting of said child can’t work.
You might be wondering if you pay spousal support, is this tax deductible? The answer is that it is not. However, you have to pay taxes on the amount you receive if you are the one receiving spousal support.
Length of Support
Duration, or the length of time you either have to pay or will receive support, is also an important factor to be aware of. There are specific rules with respect to this. If a marriage lasted less than ten years, then the longest a spouse will have to pay is five years. However, if the spouses were married at least 20 years but not more than 30, then support will last seven years. If the marriage lasted for 30 or more years, then ten years is the longest support can last. Be aware if one spouse remarries or dies, then the payments legally can stop. As you can imagine, it is very important to have a copy of your marriage certificate, which will show the date of your marriage, since the date of your marriage will play a significant role in how long you receive support. If you have lost or cannot locate your marriage license, it is best to contact the state and request one.
Amount of Support
There are a couple of different kinds of spousal support to be aware of. There is reimbursement support and there is also long-term or permanent support. There are a number of factors that a court will look to when determining spousal support or alimony. They are:
- The amount of property being divided between you and your spouse
- How you and your spouse lived while you were married
- How dependent your spouse would be on your income after the marriage to maintain your old standard of living
- The separate income of each spouse
- How long the marriage lasted
- The age, education level, health, and past work experience of each spouse
- How long a spouse was out of the workforce and whether that spouse left the workforce to raise children
- Other factors a judge may consider.
The earning capacity of the spouse is also an important factor in how much money is
awarded, if any, by the judge. The judge will also look at whether one spouse is either under-reporting their income or if they are voluntarily not working at all or voluntarily not working at an income level that they could.
Proving fault of your spouse can also help increase your award, and by extension, it can be used to decrease your reward. If you can show that your spouse was abusive, adulterous, or committed some kind of fault during the marriage, then that can increase the amount of money you receive.
Typically, the amount of support is limited to whichever is less: 20% of the paying spouse’s average monthly gross income or $5,000.
Health Insurance
It is often common that one spouse receives health insurance from another, especially if one spouse spends a significant portion of the marriage not working. Therefore, it’s important to be aware you can use cobra to pay for your spouse’s health insurance. Cobra provides that when an employee insured by a group policy gets divorced, the employee’s former spouse can remain covered for up to three years on the group insurance policy. The nonemployee spouse has to pay for this, but they can only be charged whatever the employee spouse is paying, plus a 2% administrative fee. It is important to know when the 36-month plan starts for the nonemployee spouse since this has an important influence on the coverage. Contact the company’s human resources department and get a copy of the plan to be sure.
There are important deadlines with respect to Cobra. Within 60 days of the court issuing the final judgment, the employee spouse has to notify the administrator of the plan that the divorce is over. From there, the plan administrator has 14 days to send you notice about your coverage. You then have 60 days to send back the forms saying you agree to the coverage and 45 days to pay back the premiums from the date you were initially eligible, so returning the documents at once is important.
Enforcing Support
If your spouse doesn’t pay what has been either agreed to by the final settlement or disobeys what the judge ordered in support at trial, then your only option is to go to court and seek a court order compelling your spouse to pay. To accomplish this, you will have to set a court date by filing a motion to compel, serve the documents on your spouse, and then go to court to argue your position in front of the judge. If you hire an attorney for this process, there is a chance the judge will award you whatever attorney’s fees you paid, as long as they are reasonable.
There are defenses that can be raised by the spouse who has either stopped paying support or who has reduced what support has been paid, so be aware of this. For example, if the spouse lost his or her job and had a sudden medical condition that has impaired his or her ability to work, then the judge may weigh this in deciding whether to enforce support. However, if the spouse who has been brought into court to answer as to why he or she has not paid support wants to modify the support, that spouse needs to have a separate hearing for this.
