Here’s the low down on making sure spousal support is calculated correctly…
In comparison to child custody cases—in which judges must decide which parent a child is going to live with—deciding on a spousal support amount is much more straightforward. That being said you need to know what factors must be considered in setting spousal support.
Basically, in setting the amount of spousal support to be paid, courts look at:
- how much money each person could reasonably earn every month
- what the reasonable expenses are going to be for each of them, and
- whether an spousal support award from one to the other would make it possible for each to go forward with a lifestyle somewhat close to what the couple had before they split—known in divorce law as “the standard of living established during the marriage.”
As is frequently the case, if there isn’t enough money to make it possible for the parties to reestablish something close to their marital standard of living, then most judges will look for a way to make the divorcing parties share the financial pain equally.
Example: Here’s how the math works out in a typical spousal support case. Imagine that a husband who files for divorce earns $5,000 a month. His wife stays at home with three young children and earns no income. Under their state’s formula, she’s entitled to $1,650 child support per month. But say she convinces the judge that her total rock bottom needs, including a house payment, are $2,300. If the judge is convinced her budget is solid and that her husband can afford it, she would be awarded $650 in spousal support: $2,300 minus $1,650. (For more on a judge’s discretion in these decisions, see “My 40% Rule,” below.)
Are Savings Included in a Standard of Living?
In many states, the law specifies that in setting spousal support, the judge should consider how much support it would take each party “to maintain the standard of living established during the marriage.” This can raise questions about how a court should set and evaluate a particular standard within the “standard of living.”
For example, consider the married couple who agreed that it was important to put a generous slice of their income in a savings account. Now that they are getting divorced, should that practice be considered a part of their standard of living? Courts in California, North Carolina, Virginia, and Wisconsin have answered that question in the affirmative. Courts in Florida and Hawaii have found to the contrary.
In one of the California decisions, the court noted: “We fail to see why Wife should be deprived of her accustomed lifestyle just because it involved the purchase of stocks and bonds rather than fur coats.” (In re Marriage of Winter, 7 Cal. App. 4th 1926 (1992).) Discussing the situation of the supported spouse, the Hawaii court opined that “the ability to continue to save and build up one’s net worth is not a valid standard of living consideration justifying the award of increased alimony/spousal support.” (Kuroda v. Kuroda, 87 Haw. 419 (1998).)
The bottom line: The courts in your state may or may not have taken a stand on this and many similar questions. There is plenty of room for disagreement. Find out your state’s position, either through a lawyer or on your own. Depending on what you find, it may be a good idea to retain an experienced family law specialist to represent you.
My 40% Rule
When a friend of mine was on the bench he had a personal and informal rule that, no matter how great the need, he would usually not leave people who were paying support with less than 40% of their income after they had made their child support and spousal support payments. Without at least that amount, it seems to me that a wage earner has little incentive to go to work every day.
However, if the supporting spouse was the parent of more than four children and the other spouse had no job skills, he might well break his “rule” and go lower than 40%. I have never discussed this “rule” with other judges, but I would expect that many—although not all—would agree with the reasoning.
If you are presented with an order that would leave you with less than 40% of your income, point that fact out to the judge. But doing it as a veiled threat—“If that is all you are going to leave me, I might as well quit my job and move to Brazil” —would be a mistake. Most judges don’t take kindly to those sorts of threats. Instead, try being a little subtle about it, such as: “The amount my spouse is asking for leaves me with less than half of my paycheck each month.” And it may very well convince a judge not to wipe out “the goose laying the golden egg.”
The Underemployed Spouse
As noted, spousal support is generally based largely on what each of the divorcing spouses “reasonably earn.” That means that if a person is deliberately working at a job that pays less than what he or she could earn, the courts will sometimes figure the spousal support amount based on a higher figure, in what is referred to as imputing income for support.
For example, if a school teacher who earns $50,000 a year decides teaching is just too stressful and goes to work instead as a clerk in the post office for $35,000 a year, a judge might well decide to figure the spousal support amount based on a teacher’s level of income. And if a doctor was making $200,000 a year in a big city, but then decides to move offices to a small town and makes only $90,000 a year, a judge could impute income to the doctor by basing the spousal support amount on $200,000—the higher income.
When facts such as these occur, the person who has changed jobs will usually be expected to present evidence on why personal factors such as stress made the change necessary. Sometimes a psychologist is called as a witness to back up the need for the change. The person opposing a reduction in support may succeed by showing that the lifestyles of those who are being supported will be severely effected by the loss of substantial spousal support payments.
Court decisions in this area will often depend on the precise wording of the state law on spousal support and the court’s appraisal of the good faith of the supporting spouse.
All of this that I’ve just shared with you can be extremely intimidating and overwhelming which is why we offer a FREE Phone Consultation to ask questions and get clear on the things that will have the biggest impact in your case and situation.
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