Spousal Support
When Must Alimony Be Paid?
Both spouses in a marriage are expected to work for at least a substantial portion of their marriage. When a marriage ends, there should be no expectation from either spouse for lifetime support.
In a marriage of relatively brief duration (under five years), the courts most often assume that:
Each party has kept the same ability to support themselves from prior to the marriage.
While some brief adjustment period may be needed, each spouse should be expected to be substantially independent and self-supporting within a short time after the divorce. This assumes that each party can simply continue in, or reenter, the workforce as a full-time employee on short notice. This is an assumption that is unrealistic if one of the parties is required to provide primary care for a child (or children) of the marriage.
In a marriage of longer duration, extended spousal support (and in some cases even lifetime alimony) may be appropriate. A court calculating alimony in these cases will usually take into consideration:
The receiving spouse’s assumed earning capacity
The property and debts received by each spouse
The physical and mental health of the receiving spouse
Any disparity in earning capacity of the spouses
Types of Alimony
Spousal support is typically called either “rehabilitative” or “permanent” alimony.
Rehabilitative alimony is alimony paid for a specific period of time, where it is anticipated that all alimony will cease at the end of that period.
This form of alimony allows the necessary amount of time for the dependent spouse to upgrade education or acquire new work skills and return to employment.
In a substantial percentage of cases, rehabilitative alimony isn't enough to allow the spouse to be economically self-sufficient.
Permanent alimony is alimony to be paid for an indefinite period of time. However, despite its name, you shouldn't expect that permanent alimony will be paid for life.
The party responsible for paying permanent alimony must ask the court for a reduction or elimination of alimony, when appropriate circumstances arise.
A few states reject the idea of prejudging the amount of time necessary for rehabilitation and award permanent alimony as a matter of course.
Termination of Spousal Support
There are certain specific events that typically end the obligation to pay or right to receive spousal support:
In addition, substantial changes of circumstances may lead to modification or elimination of spousal support. Examples include:
The retirement or laying off of the spouse paying alimony
Substantial increases in the income of the spouse receiving alimony and other similar factors
The effect of cohabitation of the payee spouse with a presumed sexual partner without marriage is a controversial issue.
Some courts see this situation as a basis for terminating spousal support in every case
Other courts view this situation as a basis for terminating support only if the relationship is “marriage like”
Some courts examine the relationship to see if it provides, or should provide, financial advantage to the spouse receiving support. If it does, the court may decide a modification or elimination of alimony is appropriate
Once a court ends the obligation to pay alimony, it can’t be revived, even if the situation of the receiving spouse changes substantially. So when there is a substantial change of circumstances potentially leading to the elimination of alimony, a court may make the paying spouse pay a token alimony payment, even if it’s a very small amount.
Divorce mediation still feels like a new idea in some parts of the country, but it's increasingly well known and widely accepted. Mediation means different things to different people.
In the form I recommend, you and your spouse would both sit down in the same room with a neutral mediator. With the mediator's help, you would work through all the issues you need to resolve to get through your divorce — stuff like property division, parenting plans and child and spousal support.
Although there certainly are different styles of mediation, there are several things you can depend on no matter what style your mediator uses. Mediation is:
The Mediator’s Role
The mediator remains neutral between the husband and the wife. That means the mediator can't give advice to either party, and also can't act as a lawyer for either party.
I think the mediator's peculiar role as a neutral party is the key to what makes the process work. Because the mediator is neutral, he or she can throw out ideas that both sides may have thought about but neither side wants to suggest. The mediator also develops credibility with both parties that is usually absent for either party or for either party's lawyer.
While lawyers love to make proposals and defend positions, a good mediator will steer the parties away from proposals and positions and toward accomplishing goals. A skilled mediator can also act as a "closer," gently guiding the parties to an actual agreement rather than letting discussions drag on.
Mediators also point out things that each spouse should know about what they're trying to accomplish. That open and free exchange of information makes it easier to negotiate in confidence. Because you’re working with the same base of information, it usually takes far less time to negotiate a resolution that makes sense to both spouses.
You're welcome to bring your lawyer to mediation if you want, or you can use your lawyer as an advisor between sessions.
Mediation is voluntary. It continues only for as long as all three of you — you, your spouse and the mediator — want it to.
Your mediator has to have a good reason to withdraw. But you or your spouse can withdraw from mediation at any time — for a good reason, a bad reason, or no reason at all.
People often ask, "Does mediation really work?" In a word, yes. Mediation produces agreement in 50 to 80 percent of cases.
And we know from years of research that when you compare couples who have mediated their divorce with couples who go through an adversarial divorce, mediating couples are:
More likely to be satisfied with the process and the results
More likely to spend less time and money
Less likely to go back to court later to fight about something.
The main advantage of mediation is that it keeps you and your spouse in control of your own divorce. That can make all the difference in recovering from your divorce and moving on with your life.
Mediation allows the two of you to get through the process with less conflict than you would experience in an adversarial divorce. Because mediation is all about working with shared knowledge, mediation also often allows you and your spouse to work together to lower your tax bill …and that can often translate into more money for you.
So now you're officially divorced. This has been incredibly painful, and the last thing you want to do is to spend more time messing with it. But you’ll be much better off down the road if you spend a few minutes now to make sure everything’s in order.
Read Your Order
There's no substitute for carefully reading your divorce court order from beginning to end. Ideally, you already did this before the judge signed it. Even if you did, though, read it again. Don't rely on the judge, or even your lawyer. You're the one who's going to have to live with it, so you need to make sure you understand it thoroughly.
You might want to make a copy of your order and give it to a trusted friend to read. "Fresh eyes" may help spot something you meant to cover but forgot to mention. It may be too late to bring it up now, but the sooner you know about it, the more likely you can deal with it effectively.
Change It If Necessary
Divorced spouses are notorious for keeping the fight going after the judge has signed the divorce court order. As a result, it's tough to change a divorce court judgment after it's signed.
But there may be some changes you can make:
You can change any obvious typographical errors.
You may be able to change a provision that is unenforceable by its terms – for example, a provision that requires you to transfer a bank account that doesn’t exist.
In some states, if you move quickly, you may be able to change a settlement agreement that you signed while your judgment was impaired or while you were under extreme duress.
Or you can appeal.
Appeal If You Must
Appealing a divorce court judgment is usually a lousy use of your money. Something like 90 percent of divorce court judgments are approved on appeal. Divorce court judgments tend to resolve several related issues in one ruling, and they’re highly dependent on the judge’s discretion after seeing the parties and assessing their credibility. This makes appellate courts reluctant to upset the discretion of the trial court unless they see something that’s clearly out of whack.
Appeals are expensive:
You'll pay several hundred dollars for a trial transcript
You'll pay for your lawyer to digest the transcript, research the issues and prepare a brief
You'll pay your lawyer to evaluate the brief of your ex-spouse's lawyer and prepare a reply brief
You may pay your lawyer to attend oral argument on your behalf
You may pay for your ex-spouse's lawyer to do all the same things
Whatever you spent on your trial, figure that much again as a rough guess of the cost of an appeal.
If you must appeal, think carefully about which lawyer is right to handle it. You certainly can use the same lawyer for your appeal that you used for your divorce trial, and many people do that. However, there’s also no reason why you must use the same lawyer.
The appeal process seldom requires your attorney to spend much time with you, and it may not even require the attorney to leave his or her office. Many appeals of domestic court judgments are handled entirely on paper, with no oral argument at all. So there may be no real advantage to finding a lawyer near you, or even close to the appellate court. Instead, you may want to find someone who has considerable appellate experience, ideally dealing with the issues you expect to be the focus of your appeal.
Just remember that the skills needed to handle an appeal successfully (excellent writing ability, legal knowledge and familiarity with appellate procedures) are different from those needed in a trial.
Abide By It
One of the mistakes divorced people make most frequently is to forget to do the things their divorce court order requires. For example, your order may provide that one of you is to assign your rights to the house or other real estate to the other by quitclaim deed (or in some other way). Make sure you actually do it.
Did you end up with a "Qualified Domestic Relations Order" to transfer interest in one of your retirement plans? Make sure you follow through.
Did you agree to pay child support? Make sure you actually pay it to the recipient by the method required under the child support order. If you pay by check, keep your cancelled checks. Never, never, never pay cash for child support.
Does the order require you to close a checking account? To pay off a bill? Do it.
Does the order require that your spouse do something by a certain date, like remove your name from the loan on the house? Set up a reliable system so you'll remember to check at that time and make sure it was done.
Now, about your children. If you and your spouse are still fighting, I recommend that you devote at least the first couple of months to following the court-ordered schedule exactly, without ever asking for a deviation. If your spouse asks for one, be as flexible as possible, but you shouldn't ask for one for the first couple of months.
Just follow the order. This is a critical time for everyone to get accustomed to your new life as co-parents. Stick to the order. There'll be plenty of time later to ask for flexibility.
If this has been a cooperative divorce (as most are), you and your spouse may immediately begin deviating from the court-ordered schedule. That's cool. Just remember that if you start fighting about something, it's the schedule in the order that the judge will probably enforce.
By the way, if you're getting to the point at which you're finished with your divorce and moving on with your life, it's time to think about executing a new will.
Both parents have the legal obligation to support a child, both during and after a divorce.
Courts will order a non-custodial parent to pay a specific amount to the custodial parent to cover a proportionate amount of the child’s expenses, such as:
Housing and utilities
Food
Clothing
Medical costs not covered by insurance
Activities such as soccer and music lessons
Child care costs
Special expenses of a disabled or chronically ill child
Education expenses such as tutoring and college
Calculating Child Support
State laws vary greatly as to how courts calculate child support. It’s best to consult with a local lawyer to understand your state’s calculation process.
Some states calculate child support as a percentage of the non-custodial parent’s income, without considering other factors.
Most states use formulas that factor in:
The incomes of both parents
Assets of both parents (property, investments and so forth)
Medical expenses of the child
Current and projected child care expenses
Cost of current activities of the child
The amount of time the child spends with the non-custodial parent
How many children there are in each household
The age of the child or children
In calculating child support, a court may consider as “income”:
Your salary or business income
Any bonuses you receive regularly
Overtime pay, if you regularly work overtime
Income from rental property and other investments
Income from seasonal or part-time second jobs
Your current spouse’s income if the child has lived with you and your spouse and your spouse has financially supported your child
Making Child Support Payments
In most states, child support must be paid monthly on a specific day of the month. You may be able to set this schedule according to when you are paid.
Most states have child support “registries” you can pay into each month. The money is then forwarded on to the custodial parent.
Paying into a child support registry is a very good idea, because then you have a government record of what you have paid, if there is ever a dispute as to how much you owe.
If you pay the money directly to your child’s other parent, make sure to pay by check or money order, so that you can prove you’ve paid. Never pay in cash, no matter how insistent the custodial parent is.
It’s a good idea to keep track of money you spend on your child above child support payments. This might include:
Birthday and holiday gifts
Extra clothing purchased for school
School supplies
Books and toys
Sporting equipment
Increase in rent and utilities dues to having extra space in your home for your child
This information will come in handy if you have to revisit the child support issue in the future.
Modifying Child Support Orders
In some states, child support is recalculated on a regular schedule, for example every two years. In these states, the courts require parents to exchange tax return information to see if an increase in child support in warranted.
In all states, either parent may bring a motion (sometimes called “petition”) to ask the court to recalculate child support at any time.
If you’re the paying parent, you may want to ask the court to recalculate child support when:
Your income has dropped dramatically or you become unemployed
The other parent’s income has increased
Living expenses have changed in either household
If you’re the parent receiving child support, you may want to ask the court for a recalculation when:
The paying parent’s income has gone up or you discover the paying parent didn’t disclose all income previously.
It has been years since the last recalculation and your child’s expenses have gone up
Collecting past due child support is vital to making sure your child gets everything he or she needs.
There are many approaches to take in attempting to collect unpaid child support:
Wage Garnishment
Many child support orders have a clause that allows you to garnish the wages of the paying parent once payments become overdue. If your child support order doesn’t have this language, you can ask the court to add it to your order.
Either your attorney or a local child support enforcement agency can prepare and serve the paperwork for a garnishment on the nonpaying parent’s employer.
Once the garnishment takes effect, the current child support and some portion of the overdue child support is taken directly out of the nonpaying parent’s paycheck each pay period.
The amount of wages that can be withheld each pay period for child support varies from state to state, but is usually a certain percentage of total earnings. “Earnings” usually include pension benefits, bonuses and so forth. Child support garnishments usually take precedence over other garnishments, such as consumer debt garnishments.
License Suspensions
Under the 1996 Welfare Reform Act, all states must have procedures for revoking the “licenses” of non-paying parents.
Affected licenses include:
Driver’s licenses
Passports
Professional licenses (medical personnel, lawyers and any other profession for which you need a license to perform)
Recreational licenses, such as fishing and hunting
Most states require the nonpaying parent to be behind a certain dollar amount in payments before licenses are suspended.
Many states give the nonpaying parent notice ahead of time of impending suspension, so there’s real inventive to get child support payments current.
Attaching Tax Refunds
If the nonpaying parent is at least three months behind in child support payments, the Federal Tax Offset Program allows you to “attach” (take) the nonpaying parent’s federal income tax refund.
You can find out more information by contacting your local or state child support enforcement agencies.
Liening Property
If you put a lien on the nonpaying parent’s real estate, he or she won’t be able to sell the property without paying the overdue child support.
Putting a lien on property is easy to do, but there’s no guarantee the nonpaying parent will sell the property any time soon.
Federal Criminal Prosecution
The Deadbeat Parents Punishment Act (“DDPA”) makes it a felony to:
Move from one state to another to evade child support obligations
Fail to pay more than $10,000
Fail to pay due child support for more than two years
You can find out more about possible prosecution of a nonpaying parent by contacting your state’s federal United States Attorney’s Office (listed in the government section of your phone book).
Contempt Motions
Another option might be to file a contempt motion against the parent who hasn’t paid support, asking the court where the child support order originated to hold him or her in contempt for violating the child support order.
Hiring your own attorney is the fastest and most efficient way of processing a contempt motion.
In some states, local child support agencies will provide you with an attorney if you can’t afford one on your own.
Your attorney will need the following information to file the contempt motion:
A copy of the child support order
The nonpaying parent’s name, current address and social security number
The nonpaying parent’s driver’s license number, if available
The current employer of the nonpaying parent, if available
A list of any real estate the nonpaying parent may own Identification of any professional licenses the nonpaying parent may hold
A description of any previous efforts you’ve made to collect the past-due support
Making custody decisions is always the most painful part of divorcing. Being clear about your options from the start may make tough decisions easier.
