Alimony is an important part of any divorce. In my experience, alimony is often misunderstood by the spouse who is going to pay, and the spouse who needs support. The paying spouse often perceives alimony as the greatest injustice a court can inflict. The spouse who needs support often does not want alimony because they don’t want to be unfair to the other spouse, or they seek an unreasonable amount.
Whether you are paying alimony, or receiving it, this article will help you determine what is fair, and when it is even warranted.
1. The Court Sees Your Income as Belonging to Both Spouses.
A typical marriage has one person working and another person staying home. Sometimes both parties work, but often one spouse works and makes more than the other. The court sees your marriage as a legal partnership, and income of one spouse belongs to both partners. Unless you have some agreement stating otherwise, the court will want to make sure that the other spouse is taken care of. The court will want to see that the other partner is given their due.
Alimony is not forever, however. The receiving spouse needs enough to either get on his feet, or to keep his lifestyle as close to the marriage as possible. What you get depends on the paying spouse’s resources.
So if you’re thinking that you don’t deserve alimony or that you don’t want to be unfair to your former spouse, think again. You put in work during your marriage, and you deserve to be compensated for it.
If you have to pay alimony, you may be wondering how much is fair. There are several things to consider.
2. Alimony Cannot Be More Than Your Demonstrated Need.
The court will not award more alimony to you than what you need to live in a month. Before you can be awarded alimony, you must to demonstrate to the court how much money you need on a monthly basis. This is done through a financial declaration. The court will look at several things to determine your need, including:
- The receiving spouse’s monthly income (or potential income);
- The receiving spouse’s monthly expenses;
- Any existing obligations.
Job experience is an important factor. The court will want to know what experience you have and what your typical income was. If you had no experience, the court may still say you are capable of making minimum wage and impute you to that income. Unless you have a good reason, the court is likely to find you to have an income which will be used to offset your expenses.
Your monthly expenses are the next thing they will look at. How much is your rent or your mortgage? How much will you spend on food, utilities and gas? What debts do you have? These things will be used to see how much money you will need in a month. When estimating your expenses, be careful. The court is very familiar with how much living typically costs for a single person, or a family of four. They will know when your expenses are too high. My recommendation is to average out a year for each expense, and then err on the side of higher. You also do not need to live as a college student either. Judge your expenses by how you typically live.
For those potentially paying alimony, look carefully at your spouse’s claimed expenses. You likely have just as good of an idea how much you typically spent or spend on household expenses. Attacking a spouse’s claimed expenses are a good way to potentially reduce an alimony payment.
3. Alimony Can Sometimes Be More Than A Person Can Afford
The court will look at a person’s ability to pay, and will factor that into an alimony award. However, just because you cannot afford an alimony payment does not mean a court will not order it. When there is not enough income, and too many expenses between both parties, the courts will equalize the parties’ incomes. This typically results in both parties not having enough to meet whatever they’ve declared their expenses to be. This is why it’s crucial that you list your expenses fairly, but that you also attack the expenses of the requesting spouse. Sometimes, however, there’s just no avoiding an equalization, especially if you both lived beyond your means.
So what can you do if this is your situation? What can you do if you are forced to pay more than you can actually survive on? If time permits, you may be able to object to a commissioner’s recommendation. If there is not a basis for the commissioner’s equalization, a judge may overturn the alimony award. There are many ways to attack a commissioner’s analysis. If this is your situation, you may want to consider hiring or consulting with a divorce attorney.
4. Fault Can Be Considered In Alimony, But Be Careful.
If the recipient spouse cheated on you during your marriage, the courts are permitted to factor that in to a determination on alimony awarded. There are also other things a court can consider, such as physical abuse, or causing serious financial harm to the parties. There is a problem with this, however. It is a law that alimony cannot be a punishment.
The courts do not know how to deal with this conflict of factoring fault into an alimony award and not punishing either spouse. As such, courts will often reject any alimony arguments based on fault. This does not mean that you can’t make an argument for fault, you just have to make one that is designed to not be perceived as a punishment. If this is your situation, consider giving us a call. We have had experience in alimony arguments, and feel confident that there are still ways to use fault as a way to lower or raise an alimony payment.
5. Court Will Not Take Kindly to Failing to Get Proper Employment
If you are getting a divorce you need to consider getting a job to support yourself in some way. Depending on your circumstances, this may not be possible and this advice may not be for you. If you are capable of getting a job, you should get one. The court will not appreciate you failing to do anything towards the support of yourself. Although you may be tempted to keep your income low to maximize your alimony, this would not be a good idea. The court will likely assign you a full-time income regardless of what you do, and may assign you more than what you would actually make.
It is thus good practice to take the decision out of the hands of the court. Find a job that you can do that you enjoy. Unless you are capable of making the equivalent of your other spouse, you stand a good chance of getting alimony.
There may be ways to mitigate how much work you have to do, but those strategies are best left to another article.