Spousal support refers to financial payments made to one spouse from the other during a legal separation or divorce. These payments are also sometimes referred to as alimony. Spousal support may be ordered so the receiving spouse can maintain their pre-divorce lifestyle, or to allow them sufficient time to gain financial independence. For example, spousal support may be awarded to a spouse that left their job to be the primary homemaker or caregiver, while the other spouse provided for the financial needs of the family.
In such a case, a court may order spousal support until the spouse who left their job can regain financial independence and earn a living on their own. Importantly, once the receiving spouse is able to get back on their feet, the supporting spouse’s obligation to pay is generally terminated.
Spousal support may be permanent or temporary. Permanent spousal support generally means that support must be paid until some life changing event occurs, such as the death or remarriage of a spouse. Temporary spousal support is typically paid when the couple separates, but the divorce is not yet final.
The court considers several factors when determining whether to award spousal support. These factors may include:
- Whether the couple was legally married;
- The length of the marriage;
- Each spouse’s current and future earning potential, as well as their financial contribution to the marriage;
- Child custody considerations; or
- Age and health of the parties involved.
If you and your spouse are planning on separating, it is in your best interests to execute a written marital separation agreement. This agreement is similar to a contract and typically states:
- How much you expect to receive in spousal support;
- How often support payments should be made; and
- In what form the payments are to occur.
If you choose not to file the agreement with the court, the agreement is treated as a private contract between you and your spouse. Within a marital separation agreement, you can choose not to receive any spousal support, but most people will not decline all support.
Should you file the separation agreement with the court, the judge may decide whether the agreed upon amount of spousal support is acceptable. Whether or not the judge may accept a marital separation agreement depends on the laws of your state.
Different states utilize different contract law concepts when upholding the terms of a marital separation agreement. This can include whether the amount of support in unfair or unconscionable, and whether one spouse was forced or coerced into signing the agreement. When determining the amount of spousal support to be paid, it is important to keep in mind that the spouse who receives support must pay taxes on that amount, while the paying spouse is entitled to a tax deduction.
Once the spouses have agreed to an amount of spousal support in their marital support agreement, the amount of support may be changed through a modification order. Once again, courts generally will only grant a modification of a previous court order upon a showing that there has been a significant or material change in circumstances since the prior order.
If the agreement for spousal support was never filed in court, the support can be changed if both spouses agree to a different amount. However, if both spouses cannot agree on the modification or termination of spousal support, then either spouse may initiate a legal proceeding against the other.
It is important that you continue to make your spousal support agreements until the court has determined that the order for support should be modified. Generally, to begin the modification process you must first file a petition with the court. After filing the petition, you should be prepared to show that you are entitled to the modification based on some substantial change in circumstances since the last order was entered.
Some examples of a substantial change in circumstances include evidence that:
- The paying spouse is now laid off;
- The paying spouse is retired;
- The paying spouse has remarried;
- The paying spouse has now become disabled; or
- The receiving spouse is now earning a significant increase in their income.
An order that terminates permanent spousal support may be granted when the spouse dies, remarries, or cohabitates with a new partner. Additionally, if the spousal support order was granted to allow a spouse time to gain financial independence, the court will terminate the order once it has been determined that the receiving spouse is no longer in need of the support.
If you and your spouse are separating and you are seeking spousal support, it is in your best interests to contact a well qualified and knowledgeable family law attorney. An experienced family law attorney will be able to advise you on your state’s laws concerning spousal support, as well as represent you in any necessary court hearings.
If you find yourself in a situation where your spouse is seeking, or has already been awarded spousal support, it is crucial that you continue to make any court ordered payments in order to avoid legal penalties. Additionally, consulting with an experienced family law attorney is advised in order to modify a previous court order for support.