The Post-Divorce-Parenting Glossary

• What is spousal support?
• How does spousal support differ from child support?
• What are controversial issues with spousal support?
• Is spousal support a tax deduction for the person who pays it?
• How long does spousal support last?
• What determines if spousal support is required or not?
• How is spousal support calculated?
• What are the potential repercussions if an ex-spouse doesn’t pay court-ordered spousal support?
• Does spousal support depend on which person filed for divorce?

What is spousal support?

Spousal support (also referred to as maintenance or alimony) refers to a former spouse being forced to provide financial support to the other former spouse, following a divorce.  Spousal support is not child support.  Spousal support can occur with or without children. 

Spousal support is intended to be rehabilitative.  The idea is that it is intended to last for such a duration that the person receiving spousal support become "self-sufficient".

How does spousal support differ from child support?

The difference between spousal support and child support is primarily what their intent is.  Spousal support is meant to help a spouse who has been out of the work-life for a period of time, be able to maintain a standard of living reasonably similar to that of the other spouse who has been working.  Child support is intended to provide for the children, and has nothing to do with the work history of the spouse.  It is possible for one spouse to be given child support and the other get spousal support.  They are two entirely different forms of support.

There are other differences, as well.  Spousal support is a taxable event — a tax deduction for the payer and taxable income for the recipient.   Child support, by contrast, is not a taxable event.  It cannot be written off by the payer, and it is not considered income for the recipient.

What are controversial issues with spousal support?

Many find there is a disconnect between the intent of spousal support and what actually happens in reality.  The intent is to help a spouse who has sacrificed being competitive in the job market in order to help the family, be able to get help so they can support themselves.  

Opponents of spousal support point out that it discourages the spouse from attempting to improve themselves or remarry.  If a person receiving spousal support feels they are going to be losing support money for finding work, they are less likely to try to find work.  If they feel like remarrying will end support, they are less likely to remarry, even if they find someone they would like to be married to.  In these ways, spousal support has unintended negative consequences.

This is why it is typically best to have a fixed duration for spousal support, if it is justified.  Having a termination date communicates to the recipient that they have a certain period of time to begin supporting themselves before the support ends.  It prevents ambiguity and conflict by removing disputes about the duration of spousal support.

Is spousal support a tax deduction for the person who pays it?

The IRS states that for federal tax purposes that spousal support payments that meet the following restrictions may be tax deductible by the payor and taxable income for the recipient:

• The parties do not file a joint tax return
• The payments are made via cash, checks, or money orders,
• The payment is received by the payor's former spouse or on the behalf of the former spouse
• The parties do not live in the same household
• The payment is not considered part of  a property settlement
• Their is no liability to make such payments after the former spouse
• The payment is not considered child support

It is important to note that child support is not tax deductible.  Only spousal support (alimony) is deductible.  Likewise, it is taxable income for the person who receives the spousal support.

How long does spousal support last?

A divorce decree may specify a specific duration for the end of spousal support, but if an expiration date is not specified, payments must continue until a court orders they should end.  This may mean that the paying spouse must petition the court to end payments.

The duration of spousal support depends on factors such as:
 

• age of the person receiving support
• work history of the person receiving support
• education of the person receiving support
• health of the person receiving support

The less likely the recipient is to support themselves, the more likely it is for the payer to have to pay spousal support for a longer duration of time.  For example, if a recipient is in poor health and unlikely to be able to work, spousal support may last for a long time — perhaps a lifetime.  Conversely, if the recipient is in good health and simply needs time to get back into the job market, then spousal support may have a fixed duration that is relatively short, however there are many cases where spousal support continues for life even when the recipient is capable of working and becoming self-supporting.

Life changes such as remarriage typically end spousal support.  Live-in partners might also be considered as a life change significant enough to end spousal support, although every family situation is different.  The divorce decree should specify the duration of spousal support or ways that it may terminate, but common causes of spousal support termination include:

• A specified date for it to end (expiration date)
• Remarriage by the recipient
• Children not needing a parent at home full-time
• A court deciding that it should end for various reasons, such as the recipient not attempting to become self-supporting
• A change in income between either the payer or the recipient
• Death of one of the parties

What determines if spousal support is required or not?

Generally, two factors determine whether or not spousal support will be awarded in a divorce.  These are as follows:

• The income disparity is used
• The duration of the marriage is a factor
• The standard of living before the divorce
• The capacity to earn of the person filing to receive spousal support
   

If one spouse earns significantly more income than the other, spousal support may be awarded.   Generally if the marriage length exceeds a ten-year period, spousal support is likely.   These factors generally both need to occur.  This means that if there is a large income disparity but the marriage was short, spousal support is much less likely.  Likewise, if the marriage was long, but the incomes between the spouses were similar, spousal support is unlikely.

It is important to note that different states have different laws with regard to spousal support, and family courts have some flexibility to decide cases within the framework of their jurisdiction's laws.  This means it is generally not possible to know for sure how a court will decide on the details of spousal support.

In many divorce cases, spousal support is negotiated, either directly or via divorce mediation.  In a collaborative divorce, divorcing spouses may be able to arrive at an acceptable agreement for spousal support with the need for a family court to decide the issue.  Avoiding divorce litigation typically saves both parties a lot of a time and money.
 

How is spousal support calculated?

The amount of spousal support (or spousal support calculation) that a person is required to pay varies by country and state.  Typically, the amount of time that the couple was married is a factor in the spousal support calculation.  

Because every state or jurisdiction is different, there is no one-size-fits-all method of determining how much spousal support will be ordered, but if the marriage was over ten (10) years and there is a substantial difference in income between the two parties, it can be assumed that spousal support is likely.

While there is no spousal support calculator that will work in all situations, one could research divorce cases in the jurisdiction where the divorce occurred to find similar situations that might be indicative of the scenario you find yourself in.  Look into the length of marriage, the income disparity, the age and health of the people in the divorce case, and the potential to earn income for the recipient.

When determining how to enforce a spousal support obligation, a court will first attempt to ascertain the payer’s ability to pay.  The court is likely to begin this process by looking at gross income, then subtracting off unavoidable deductions, such as taxes and social security in order to arrive at net income.  When calculating ability to pay, some expenses that a payor may feel are unavoidable might not be considered unavoidable by the court.  For example, union dues or certain types of insurance might not be considered as unavoidable expenses.

What are the potential repercussions if an ex-spouse doesn’t pay court-ordered spousal support?

In some states, not paying spousal support is considered contempt of court and punishable by jail time.   Consider the case of Ari Schochet, a divorced man who one worked at an investment group earning over one million dollars per year.  After losing his job, Mr. Schochet could no longer afford to pay the spousal support payments he was ordered to pay.  The combined spousal support and child support payments totaled more than $100,000 per year.  Mr. Schochet had been sent to jail eight times in a two-year time period despite his inability to pay.¹

It will likely be necessary to file a motion with the family court in order to have the payments restart and the unpaid amounts in arrears paid, as well. 
 

Does spousal support depend on which person filed for divorce?

Spousal support does not depend on who initiated the divorce.  All states in the United States have no-fault divorce laws, and the person that initiated the divorce is immaterial with regard to spousal support.  That being said, there are circumstances that are more likely to trigger a large spousal support obligation than others.  As an example, if one spouse is in poor health and the other abandons the marriage because of the health issues of the other person, a judge may order a very high spousal support payment for the person who abandoned the marriage. 
 

alimony, maintenance, child, support, spousal