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How Is Spousal Support Determined?

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Like many issues involving family law, state law largely dictates spousal support matters. This includes whether or not to award spousal support and in what amount.

Purpose of Spousal Support

A number of public policies support awards of alimony to a lesser-earning spouse as a means of achieving an equitable solution when the parties have disparate incomes. Some jurisdictions favor spousal support because it may prevent the lesser-earning spouse from becoming on society by virtue of the divorce action. Other states specifically say that spousal support is intended to compensate a spouse for making career sacrifices in order to assist the family.

Types of Spousal Support

There are a number of ways that spousal support can be ordered. Sometimes, spousal support is awarded only while the divorce is pending so that both spouses can pay bills and legal fees. In other cases, a permanent award of spousal support is ordered, requiring the paying spouse to continue paying spousal support for a definite period of time or until a certain condition, such as the remarriage of the spouse.

Spousal support can also be ordered to help rehabilitate the spouse. For example, spousal support may be ordered so that a spouse can complete a college degree or training program which will lead to his or her self-sufficiency.

Misconduct

Most states do not permit one party’s misconduct, such as adultery, to affect whether or not the spouse should be awarded spousal support or the amount that is ordered. For example, California specifically bars judges from using marital misconduct against the spouse in order to limit spousal support. However, some states do allow such inquiries. For example, Virginia bars a spouse from receiving spousal support if he or she committed adultery. Generally, courts can consider evidence of domestic abuse when making assessments regarding spousal support.

Spousal Support Guidelines

States may establish spousal support guidelines that provide a rebuttable presumption about the amount of spousal support that should be ordered based on the incomes of the parties. However, some states do not have such guidelines. Others only consult such guidelines if the support is only for the duration of the divorce proceedings.

Factors

State statutes usually provide a list of factors that courts can consider when making a determination about how much support to order. For example, courts often consider the duration of the marriage and the income of each party. The court may also consider the education level, earning capacity, work experience, health, age and other available resources of each party in making these determinations.

The court may also consider the family composition, such as which parent will serve as the primary caregiver for the children or if one of the spouses is a caretaker for an elderly household member. This may also involve an assessment of the contributions that each spouse has made toward the family, such as whether one spouse made certain sacrifices with his or her career to support the other’s career or to raise children. They may also see if one spouse helped contribute to the education or training of another spouse.

Courts may also look into the various types of monetary resources at each spouse’s disposal, including interests in real and personal property that is not part of the marital estate. They may also look to the provisions regarding how marital property will be distributed and whether either spouse has access to other income from retirement funds, trusts or investments.

Another consideration is the standard of living that the spouses enjoyed during the marriage. Courts may consider the amount of income that each spouse could make rather than what he or she is actually making. The court ultimately must decide whether the spouses can each individually achieve a similar lifestyle that they had during the course of the marriage with the award of alimony.

Modifying Spousal Support

The divorce decree may indicate how long alimony must be paid. If the paying spouse refuses to pay spousal support, the recipient spouse may bring forth a contempt of court action to compel compliance. If a paying spouse wants to reduce the amount of support that he or she must provide or if the recipient spouse believes that a higher amount is justified, the moving party usually has the burden to show that a material change in circumstance has occurred that warrants such modification.

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

Source: HG.org

 

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Guest Tuesday, 13 November 2018