Spousal support is always – always – a hot button issue. There are very few things we can say ‘always’ about in family law, but the fact that spousal support is contentious is pretty much a given. No one wants to pay it.
It’s also not something that is awarded in every case. There are actually quite a few criteria that you have to meet in order to have spousal support awarded, so it’s definitely not a given. In fact, there are three different things we have to determine when it comes to spousal support: (1) whether support will be awarded at all, (2) if so, how much support will be awarded, and, finally, (3) if so, for how long will the support award be received?
In general, spousal support can be terminated early if one of three things happen: (1) either party dies, (2) the recipient spouse remarries, or (3) the recipient spouse cohabitates in a relationship analogous to marriage for a period of one year or more.
Not only that, but spousal support can, in some situations, be modified, too – like if someone retires or has another significant material change in circumstances.
Yikes – so that’s a lot of uncertainty, right? It definitely is! Not only that, but there’s virtually no incentive for a paying spouse to just willingly pay support. It used to be that spousal support payments were tax deductible to the spouse paying support, and taxable to the person receiving it – but that all changed a few years ago. Spousal support isn’t taxable to the person receiving it, and it’s not tax deductible to the person paying it.
If you’re receiving, you can see the appeal; who doesn’t like having a source of non-taxable income? But as a potential paying spouse, there’s very little incentive to just agree to pay it. These days, spousal support cases often become litigated – and, since you’ve already got a situation where there’s a spouse with more financial resources than the other, you have an already-disadvantaged spouse with a reduced ability to mount an adequate legal defense.
But, anyway, that’s not why we’re here today. All too often, it’s women who need the spousal support post-divorce. But what if YOU’RE the higher wage earner? Can you be responsible for paying support to your ex husband?
The simple answer is yes. Spousal support is gender neutral; it doesn’t assume that only a woman could receive it. A husband who earns less would be potentially entitled to an award of spousal support, assuming that the factors support the award, just the same as a lesser earning wife could.
So, what would we look at to determine whether or not a lesser earning husband might be awarded spousal support?
1. Need and ability to pay
First, he’d need to demonstrate that he has a need, and that you have an ability to pay. That requires a disparity in income – usually, a pretty substantial one. If he makes more or your incomes are too similar, there wouldn’t be support awarded at all.
2. The statutory factors
The statute also provides specific factors. Much like we use the best interests of the child factors to create arguments in custody cases, your husband would need to use these factors to make arguments to support an award of spousal support to him.
The good news? The factors really support the spouse who does the most work around the home. The intention was to give some teeth to stay at home moms who were arguing for support, and basically needed to bolster that argument with work that they performed inside the home to support the marriage. But I find – stereotypical though this may be – that, regardless of whether a wife earns more outside the home or not, she still carries the bulk of the responsibilities at home anyway. So he may have a more difficult time using these factors to make an argument to support his award of spousal support than an otherwise economically similarly situated wife might.
3. Duration of the marriage
We’ll also look at how long the marriage. Basically, shorter term marriages either don’t quality for spousal support or, if they do, are only awarded support for shorter periods. For longer term spousal support, or even ‘permanent’ spousal support, you’d need to have a pretty long term (18+ year marriage).
So, yeah, assuming that all things are equal, it’s possible that you – if you’re the higher wage earner – could have to pay spousal support to your ex husband.
Obviously, though, it’s not a given, and there are a lot of different factors involved to really make a determination. When it comes down to how much you might have to pay, too, there’s often a bit of a range. So you’ll want to discuss with an attorney, get an idea of how support might be awarded in your case, and then make a decision about how to move forward from there, whether you prefer to make him litigate in order to get support, or whether you might be able to negotiate an award of support.
No one wants to pay spousal support, so I’m sure I can imagine how you’re feeling. Let’s talk about it, though, and see if there’s anything we can do!
For more information or to schedule a consultation, give our office a call at 757-425-5200 or visit our website at hoflaw.com.