|
Spousal support is money that may be paid after separation by one party to the other based upon the maintenance of the supported spouse's reasonable needs and the supporting spouse's ability to pay.
Spousal support awards are "temporary" or "permanent." Temporary or "Pendente Lite" spousal support may be paid under appropriate circumstances during the pendency of the parties' divorce action. Often support orders may be requested from the court at the beginning of a divorce case. The purpose is to meet the economic needs of the parties pending final disposition of issues in the case - property, custody, and support. Permanent spousal support awards are those made in connection with the parties' divorce judgment, and generally terminate upon the death of either party, the remarriage of the supported spouse, the terms of the judgment, or further court order. Spousal support is generally not available to those convicted of attempted spousal murder.
The concept of spousal support finds its historic roots from the English ecclesiastical courts, and exists under two theories in this country. In the US, spousal support is authorized in almost all states, but under different theories. Under the theory of "No Fault Divorce", spousal support is ordered for the purposes of maintaining a spouse's needs during transition, provides for those incapable of supporting themselves, thereby keeping them off of public welfare, and provides for custodial parents of young children whose parenting obligations keep them from full earning capacity. Under the theory of "Fault Divorce", the fault of each spouse is considered in making any spousal support award. More than half of the state's authorize an award of spousal support without consideration of fault. A smaller number of states may consider fault in making spousal support awards, and in a few states, a finding of fault can be a complete bar to an award. Spousal support is not authorized in Texas, but the court's are authorized to make an unequal division of marital property to compensate the spouse with the lower earning capacity; this may be of no value unless there is marital property of some value. A few states impose a limit on the duration of any support award.
Unlike child support, there has been no federally mandated adoption of "guidelines" for computation. There are local county guidelines in some states, which may or may not be limited to "temporary" awards. These guidelines determine spousal support based upon the relative incomes of the parties, but do not address discretionary or individually variable factors of a case such as age, health, or earning capacity of the parties. The Uniform Divorce Act ("UDA") sets the tone reflected in most state legislation as to factors to be considered by the court in making spousal support award. The UDA assumes an effort to meet both parties' needs out of the property division. Improvident management of awarded property may result in denial of spousal support, despite financial need. The court may consider all property received in the divorce, including a party's separate property.
In the event that the property and child support awarded to a party is inadequate to meet that party's needs, then a number of factors are considered by the court in deciding whether to award spousal support, and if so, the amount and duration: the current earning capacity of the spouse requesting support; the time it would take a spouse to reeducate, retrain, or obtain employment (vocational examination may be ordered); the standard of living during the marriage; the length of marriage (whether a marriage was of "long term" or "short term" may affect the amount and duration of support ordered; the impact on dependent minor or adult children of the marriage; the age, physical, and emotional health of the parties; the ability of the supporting spouse to meet his or her own needs while meeting the needs of the supported spouse; homemaker services - insofar as current capacity may be impaired due to lengthy unemployment during marriage to raise children.
In deciding these issues the court takes into account many factors, such as when considering the current earning capacity of the spouse requesting support; the court makes the assumption that both spouses are expected to provide as fully as possible to their own support. A denial of support may be based on a party's refusal to meet his own economic needs by using existing marketable skills and abilities. Forms indicating the income and expenses of each party may be required by law in connection with any request for support.
The standard of living during the marriage of the spouse to be supported may be a "reference point" for determination of support. In this way the court may acknowledge that a spouse's "needs" include more than the bare necessities of life, reflects their station on life. It will not, however, be a reference point if the parties standard of living during marriage was beyond their actual means.
When considering the impact of whether a marriage was "long" or "short" term, in cases of short term marriage, the self-sufficiency of the supported spouse can justify a short term support order with no retention of jurisdiction, or the setting of a date at which time jurisdiction will terminate absent legal action on the part of the supported spouse. In cases of long term marriage, it may be considered an abuse of discretion for the court to terminate jurisdiction (give up the right to make orders) over the issue of support.
In considering age, physical and emotional health of the parties the court may retain jurisdiction despite strong earning capacity if a party is of advanced age or if a party has unresolved medical or psychiatric problems.
In determining the ability of the supporting spouse to meet his or her own financial needs while meeting the needs of the supported spouse the court may consider "earned" and "unearned" income of the supporting spouse, including funds held in retirement accounts, annuities, etc.. The court may also consider the supporting spouse's earning capacity, rather than actual earnings to calculate support under appropriate circumstances.
There are different types of support orders - payments for a fixed period followed by termination of jurisdiction; stepdown orders where the amount of support is systematically reduced as an incentive to the supported spouse to become self-sufficient, followed by a termination of jurisdiction or reduction to a nominal sum; payment for a contingent period of time (e.g. until spouse competes her master's degree); payment reduced by recipient's earnings; indirect support - the payor makes payments directly to the supported spouse's creditors; open ended orders, which terminate only upon the death of either party, the remarriage of the supported spouse, or future order of the court.
Unless the parties otherwise agree, the spousal support order terminates on the payor's death. To ensure payments for the supported spouse their may be legislation allowing the court to include the cost of life insurance or an annuity for the benefit of the supported spouse as part of spousal support.
Ordinarily, spousal support payments are deductible by the payor and taxable to the payee, but this may be modified by agreement of the parties. The support agreements and orders should be carefully drafted and reviewed to insure compliance with requirements of the Internal Revenue Code. Use of this tool, and the concept of "Family Support" - fully deductible combined spousal and child support - by the parties' tax planner in a negotiated agreement can result in substantial tax savings to the parties.
Spousal support obligations are not considered "debts" dischargeable by bankruptcy. Unless ordered as non-modifiable, support amounts are generally modifiable, usually based upon a change of circumstance in need or ability. Spousal support obligations can generally be enforced by contempt - a spouse with ability to pay, and with knowledge of the order, can be imprisoned for failure to comply with the order. Spousal support obligations may be payable by wage garnishment/wage assignment.
|