How Is Alimony Determined?
Alimony, or spousal support, is money paid by one spouse to another after a divorce in order to maintain the latter spouse’s standard of living. That probably sounds a bit clinical. When you get a divorce, the judge is likely to determine that you either have an obligation to pay support your former spouse financially, or vice versa. If you are the one who ends up having to pay your spouse, it’s because you have the better job or the ability to make more money than your ex-spouse.
Legally speaking, alimony stems from the belief that marriage is a contract, and that spouses have an obligation to support each other, sometimes even after the marriage ends. Traditionally, it is more likely for a man to be expected to pay alimony than a woman, as the concept of divorce descends from a paternalistic tradition. However, as our society strives more and more for equality under the law, women are more likely to be pay alimony to their former husbands, although this is still unusual. There are several factors that determine whether support payments are made, and if so, how much. In general, they are:
• How long the marriage lasted. Alimony is often paid for a set amount of time, and the longer the marriage, the longer the duration of support payments. Marriages which lasted over ten years usually involve permanent alimony.
• The ages of the spouses. Usually, younger couples have much lower alimony payments.
• The relative incomes of the spouses. In general, alimony serves to allow a spouse to continue to live in the manner to which they have become accustomed. Therefore, if there is a large disparity in income, alimony will be paid to the less financially secure spouse.
• The health of the spouses. If one of the spouses is in poor health, this will affect the size and nature of the alimony payments.
How To Enforce Alimony Agreements
When a couple goes through a divorce, one of the most important decisions they will have to make will be about alimony, or spousal support. When one spouse depends on the other for financial assistance, they may need to receive spousal support payments after the divorce is finalized. When one spouse fails to make these payments, it can make life very challenging for the other spouse. Thankfully, there are a number of legal actions that can be taken if one spouse refuses to make agreed-upon alimony payments. If you are entitled to receive alimony but your former spouse is not adhering to the agreement, contact an attorney to discuss your rights and options. You should not have to suffer if your ex-spouse is bound by law to support you after divorce.
How Alimony Arrangements Can Be Legally Enforced
Sometimes, simply informing the other spouse in writing that no alimony payments have been received is not enough to get them to follow an alimony agreement. Other actions that can be taken include:
• Getting a Wage Assignment Order
• Getting a Writ of Execution
• Getting a Motion for Determination of Arrearages
• Having the other spouse found in contempt of court
The steps to take in order to achieve these actions can be very complex and complicated. This is why it is best to speak with an attorney first before taking any action. Attorneys can save you time and effort by finding the most efficient and relevant legal avenues that are appropriate for your specific case.
How Alimony is Calculated in a Divorce
How alimony is calculated depends on where you live and are getting your divorce. Some states, and even some counties, have alimony guideline charts, similar to the child support guideline charts that exist in all 50 states. The charts determine an amount of alimony depending on factors such as the income of the parties and whether and how many children are involved.
In Utah for instance, there is no statewide alimony guideline chart. The courts use them as a starting point, before making adjustments to fit the circumstances of the divorce case.
In Pennsylvania, there are guideline charts developed at the state level. Generally the courts must follow these guidelines, though they can deviate from them as long as they explain why in writing.
Texas, which does not have guidelines charts per se, actually goes one step further by imposing a maximum amount of alimony: $2,500 per month, for three years.
Several other jurisdictions around the country have developed their own charts. But in most places, alimony is up to the discretion of the courts, both as to amount and duration. The judges take into account the income of both parties, and, in particular, the need of the receiving spouse. Ask your lawyer if there is a “rule of thumb” in your area. For example, a particular court or judge might say that a spouse with custody of the children should end up with 40% to 50% of the couple’s combined net income. Alimony and child support would then be awarded to get to that percentage. As always, if you can negotiate a mutually acceptable agreement with your spouse, you will both be better off than rolling the dice in divorce court. And when alimony is involved, you need an experienced family law attorney.
Determine the Requesting Spouse’s Financial Need
To determine financial need, the court compares the requesting spouse’s cost of living to his or her income, if any. If the requesting spouse’s income is insufficient to support his or her daily living expenses, the court calculates the amount of deficiency. That deficiency is the spouse’s “need.”
Daily living expenses must be reasonable, and to some extent, necessary. Most courts require proof of need through receipts or bills. Courts will not automatically assign the total amount of need as alimony but may instead divide it between the parties in the interest of fairness.
Determine the Ability to Pay
The court ensures that the non-requesting spouse is able to pay alimony. To determine this, the court subtracts the non-requesting spouse’s cost of living and other regular expenses from his or her income. Any income remaining after this subtraction is considered disposable and able to be dedicated to alimony. A spouse with no remaining income will not be required to pay alimony.
Marital Circumstances and Alimony
Depending on state law a court may consider the following when determining alimony:
1. The conduct of the parties during the marriage;
2. The standard of living during the marriage;
3. The amount of marital property and how it is divided between the spouses;
4. Any non-monetary contributions to the marriage, such as caring for the marital home or children.
The difference in what a court may consider when determining alimony payments is what causes them to vary in amount. For example, one judge considering the conduct of the parties may decide that one spouse’s adultery caused the demise of the marriage and that the other spouse is entitled to a large alimony award. In contrast, another one may determine that the spouse’s adultery does not affect the amount of alimony. Regardless, most courts want to award an amount of alimony that permits both parties to continue the lifestyle they had during the marriage. Therefore, it is unlikely that an award will significantly penalize or reward one party over the other. This calculation, however, is entirely up to the court’s discretion. As such, it can only be influenced by evidence of need and the ability to pay.
Amount and Length of Time of Payments
The court’s calculations will identify a reasonable amount of alimony to award. The final step is for the court to determine how long payments should last. To determine this, the court considers:
• The future earning capacity of both spouses
• The ability of the recipient spouse to become financially self-sufficient
• Any continuing or indefinite obligations that directly resulted from the marriage, such as one spouse needing to care for a handicapped child.
Alimony payments can be made periodically or in a lump sum. Periodic payments are usually made monthly, but can also be made quarterly or yearly. Courts consider the frequency of the need and how often the paying spouse receives income when determining payment dates. The amount of alimony you receive is determined by the circumstances of your marriage. To calculate an estimated amount of alimony you may receive, determine the amount of living expenses that your salary fails to cover. However, remember that a court’s first concern is fairness.
Factors That Affect Your Alimony Payments
In the event of a divorce, everyone is fully aware of the harsh emotional experience. In most cases, hurtful things are said and many character defects are quickly brought to the surface. At the same time, if the subject of alimony is on the table, a gargantuan level of uncertainty and financial stress is added to the equation. While the issue of calculating the alimony award amount is completely in the hands of the court, most spouses are at least concerned over the factors taken into consideration in determining the monthly spousal support payment. Simply put, there are several factors taken into consideration when determining the amount and type of spousal allowance.
In order to gain a better understanding of these considerations, the following information highlights and explains some of the most common factors and the role these factors play in Utah divorce courts.
1. Standard of Living
When a judge determines the alimony payment, one of the factors the court examine is both parties’ standard of living. With the overall goal of maintaining the lifestyle obtained during the marriage of both parties, the court thoroughly examines all parties’ financials and assets. Most notably, the court reviews the value of assets such as homes, vehicles, and any other type of possession of value. Also in this equation is the couple’s recreational lifestyle, such as vacationing habits. Simply put, the higher or more expensive the lifestyle of the couple, the higher the probability alimony will be awarded. This factor is even greater in long term marriages.
2. Time Married
As a general rule of thumb, the longer the couple has been married, the larger the amount of spousal support will be awarded. In Utah, marriage terms are explained in the following three categories:
• Long Term Marriage is considered to be a marriage longer than 17 year
• Moderate Term Marriage is considered to be a marriage longer than 7 years but less than 17 years.
• Short Term Marriage is considered to be a marriage less than 7 years.
When it comes to permanent alimony, it is typically awarded only in situations qualifying as a long term marriage.
3. Condition of Both Parties
When the court determines whether alimony will be rewarded, the mental and physical condition of each party along with their age is taken into consideration. In situations where one spouse is older, disabled, or suffering from health problems, the likelihood of receiving alimony is increased. At the same time, someone who is in relatively decent health and is younger would be less likely to be awarded alimony.
4. Financial Resources
In Utah, monthly spousal support is based both on the spouse’s need for financial support and the ability of the other spouse to meet those needs. In discerning financial ability, the financial resources of each spouse is examined including non-marital and marital assets. The presiding judge will take into consideration every financial resource available to both spouses. For example, the judge would indeed include one spouse’s pre-marital corporate holdings as a factor to consider in the case. In addition, the judge would also consider any type of trust funds dispersing income on a regular basis.
5. Professional Capacity
Another factor affecting spousal support payments is the professional earning capacity of both spouses. The earning capacity includes factors such as education, professional experience, skills, and the employability of both spouses. Primarily, the professional capacity consideration examines whether a spouse has the ability to earn a living in the event they are not working at the time of the divorce. In other words, this consideration involves determining whether the spouse has the ability to work. At the same time, a spouse who is able to work but is unemployed could receive spousal support payments toward rehabilitative practices. For example, if one spouse did not finish their education and doesn’t have a job, the spouse could become independent with vocational training. In this event, rehabilitative alimony would be in order.
6. Individual Contributions to the Marriage
Each spouse’s contribution to the marriage is also considered in determining monthly alimony payments. Since several spouses make contributions other than financial, the court recognizes actions such as child rearing, homemaking, and the efforts given toward the career building of the other spouse. This consideration is given because in the place of financial contributions, the spouse dedicated significant efforts toward the improvement of the family and marriage. Examples of this type of consideration are a husband who resigned from his job and relocated when his wife accepted a new job. Another example is a homemaker staying home to exclusively maintain the household and take care of the family.
7. Future Parenting Responsibilities
In Utah, the court presumes parenting rights will be mutual unless the potential of harm for the child exists. All of these factors play a role in determining alimony. Major decisions involving time-sharing, religious and educational needs, and medical and health needs are all factored into determining payment.
8. Tax Implications
In most cases, receiving Utah alimony qualifies as taxable income. At the same time, the spouse paying the alimony can the write the payment off as a tax deductible expense. All of the tax consequences and treatments of both spouses are used in determining the award amount.
9. All Sources of Income
The courts also factor in every type of income a spouse receives in determining awards, which includes investments. For example, if one spouse has a portfolio proven throughout time to earn the spouse a 10% return, the historic returns could be used as additional income and be factored into figuring the monthly spousal support payment.
In any case, the court can use the committed act of adultery by either spouse into determining the alimony payment. In addition, the court can also include the circumstances of the adultery in denying an award or setting the award amount.
Is There Any Way to Legally Avoid Paying Alimony?
Alimony is not a given when a couple gets divorced. If both parties are earning income, which is often the case, a judge may determine that both spouses are capable of supporting themselves.
If a judge has ordered spousal support in an amount that is now too high for the payer, that person can go back to court to seek a reduction in alimony. Simply stopping payment of court-ordered support will have a lot of negative consequences for the non-payer.
If a support-receiving spouse is having trouble getting the money owed to them, they can seek court enforcement. A family court judge may cite the non-paying spouse for contempt of court for failing to fulfill a court order.
Free Alimony Consultation
It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
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West Jordan, Utah
84088 United States
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