How Spousal Support Works
Some things in a divorce are more or less guaranteed. Spousal support, however, is not. Unlike child support, which is based on a strict formula that reflects the incomes of both parents, work-related child care expenses, health insurance costs, and the relative amount of time that the child(ren) spend with each parent, spousal support cannot be so easily awarded or determined.
Spousal support is based on a complex weighing of a number of different factors, including, most importantly, the income of both parties. You have to demonstrate that that party who would receive spousal support has a “need” (that is easily done), and you also have to demonstrate that the party who would pay has an “ability to pay.” This is determined based on income disparity. If you’re asking for spousal support, your husband must make significantly more than you do. If you’re making more, or if your incomes are too similar, no spousal support will be awarded, and the analysis ends there.
If, however, there is a disparity in income, you have a need and he has an ability to pay, the court (or your attorney, if you’re trying to negotiate a separation agreement) will then look to the statute governing spousal support. Read the statute here. There are thirteen factors:
- The obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature;
- The standard of living established during the marriage;
- The duration of the marriage;
- The age and physical and mental condition of the parties and any special circumstances of the family;
- The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home;
- The contributions, monetary and nonmonetary, of each party to the well-being of the family;
- The property interests of the parties, both real and personal, tangible and intangible;
- The provisions made with regard to marital property under 20.107.3;
- The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;
- The opportunity for, ability of and the time and costs involved for a party to acquire the appropriate education, training, and employment to obtain the skills needed to enhance his or her earning ability;
- The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both of the parties have been absent from the job market;
- The extent to which either party has contributed to the attainment of education, training, career position, or profession of the other party; and
- Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.
Now that you’ve read the factors, how do you feel about your chances? But there’s more. Even if you qualify to receive support, we’ll have to consider how much you’ll receive, and for how long. The amount is relatively easily determined. The formula is 28% of the higher earning spouse’s income minus 58% of the lower earning spouse’s income. As for how long you’ll receive support, you’ll probably have to consider the length of your marriage. I’ll provide you a general rule of thumb for spousal support (please note that this is NOT law but merely a guideline that attorneys and judges sometimes use to determine duration of support): if you’ve been married 1-5 years, you don’t qualify to receive support; if you’ve been married 6-18 years, you qualify to receive support for half the length of the marriage; if you were married 20 years or more, you qualify to receive permanent spousal support. What does permanent mean? It means that you can continue to receive support until (1) either of you dies, (2) you remarry, or (3) you cohabitate with another person in a relationship analogous to marriage for a period of one year or more.
It’s complicated, but that’s how spousal support works. Keep in mind that, just because you were only married a short period of time doesn’t mean that you can’t qualify for support. That’s just a general presumption. In order to successfully receive spousal support, you’ll have to satisfy all these requirements: (1) you have a need, (2) he has an ability to pay, (3) the statute warrants an award of spousal support, and (4) your length of marriage justifies an award of support. Good luck!