Spousal Support - Everything you Need to Know

Spousal support, commonly known as alimony or spousal maintenance, is a legal obligation that one spouse may have to provide financial support to the other spouse following divorce. Spousal support is typically not directed toward the children (see module on Child Support) but rather focuses on each spouse’s ability to meet his/her individual needs based on their income alone.  Laws on spousal support vary greatly between jurisdictions so you should learn about the specific laws in your area, but there are a number of common considerations that may help you in this analysis.

Purpose of Spousal Support

The primary purpose of spousal support is to address disparities in earning capacity and ensure financial stability for both spouses post-divorce. Spousal support often is used to provide financial support to a spouse who may have sacrificed career opportunities or earning potential to support the family unit during the marriage. By acknowledging and addressing the economic disparities that often arise in divorce, spousal support strives to ensure that both parties can maintain a reasonable standard of living post-divorce. Additionally, it acknowledges the contributions of the lesser-earning spouse to the marital partnership and seeks to alleviate financial hardships that may arise during the transition to single life. In most jurisdictions, spousal support is implemented to facilitate a smoother and more equitable transition for both spouses as they navigate the complexities of divorce and rebuild their financial futures.

The spousal support analysis starts with the factual underpinnings – budget (need) and income. If there is a gap between a spouse’s reasonable monthly need and the income available to that party to meet the budget, you need to look at spousal support.  In some states, spousal support is based on a number of equitable factors and left to the discretion of a court.  This makes the analysis challenging and also makes it difficult to estimate a potential outcome in this type of support.

Note, a very small number of jurisdictions utilize a spousal support calculator to determine this support. (This is in contrast to a child support analysis, which often utilizes a calculator provided by local legislatures to determine the monthly child support amount).  In areas with a spousal support or alimony calculator, this can make the analysis much easier so long as you use the calculator correctly with proper inputs. Calculators are currently used in a small number of jurisdictions, however, that it is much more likely that your situation will require a discretionary analysis on various factors.  We will walk through those below, but first, a warning. Beware of online spousal support calculators that imply an easy and/or widely accepted spousal support calculation. If you happen to find a calculator online, you should do more research or consult with a professional to make sure you are using an official calculator and using it correctly. A good test for the validity of a calculator is if it is housed on an official .gov or state website.  Most official calculators are provided by the court system or social service organizations in your state.

Spousal Support Considerations

Let’s walk through the common factors/considerations that go into a spousal support analysis when there isn’t a calculator. If you think about spousal support as intended to replicate how things would have worked out financially if you had stayed married, then these factors are sometimes easier to understand.

Duration of the Marriage

Think of this factor as an analysis of how long you each have been dependent on the marriage for your financial support. It is typically assumed that prior to marriage you were self-supporting or could have been. In divorce, you are then looking towards returning to self-support, the point in time when a person can live off their own income without any additional support from their former spouse. In a very short marriage, it is assumed you haven’t been dependent on your spouse financially for a long period of time, so you should be able to return to self-support more quickly.  Longer marriages often lead to a higher likelihood of spousal support being awarded and longer terms because the parties have been financially tied for an extended period and the lesser earning spouse may need more time to reach self-support or may never be able to maintain their standard of living on their individual income.

Financial Needs and Resources of Each Spouse

This consideration involves a comprehensive assessment of each spouse's individual financial situation, including income, assets, debts, and expenses. By meticulously evaluating these factors, the court aims to ascertain the specific financial requirements of each spouse and their capacity to meet these needs independently. This analysis strives to ensure that spousal support awards are tailored to the unique circumstances of each case, providing adequate support to the lesser earning spouse while also considering the financial obligations and capabilities of the paying spouse. Ultimately, the goal is to achieve a fair distribution of financial resources that promotes the financial well-being and stability of both parties post-divorce.

Standard of Living Established During the Marriage

The standard of living established during the marriage serves as a benchmark in many spousal support analyses, offering insight into the lifestyle maintained by the spouses throughout their marital union. This consideration involves examining the quality of life enjoyed by the couple during their marriage, including their housing, transportation, leisure activities, and other expenditures. By understanding the standard of living established during the marriage, the court aims to preserve a reasonable level of continuity in lifestyle for both parties post-divorce. Spousal support awards are structured to enable the recipient spouse to maintain a standard of living comparable to that experienced during the marriage, ensuring that neither party experiences a significant decline in their quality of life following the dissolution of the marital partnership.

Earning Capacity and Potential for Future Earnings

Earning capacity and potential for future earnings are critical factors in the spousal support analysis, focusing on each spouse's ability to generate income both presently and in the future. This consideration involves evaluating factors such as education, skills, work experience, and job prospects to determine each spouse's earning potential. Spouses with higher earning capacities may be expected to contribute more towards their own financial support, whereas those with limited earning potential may require additional assistance to achieve financial independence post-divorce. Additionally, the court assesses the feasibility of the recipient spouse obtaining employment or increasing their earning capacity through education or training, considering the impact of factors such as age, health, and marketability of skills. Ultimately, the goal is to promote self-support and financial independence for both parties to the extent feasible, while also acknowledging the need for support in cases of genuine financial disparity.

Age, Health, and Employability of Each Spouse

The age, health, and employability of each spouse impact their earning potential and potential for financial independence. This assessment involves evaluating factors such as the age of the spouses, their overall health and well-being, and their ability to secure gainful employment or maintain existing employment. Older spouses nearing retirement age or those facing health challenges may require additional support to meet their ongoing financial needs, especially if their ability to work and generate income is limited. Similarly, the court considers the employability of each spouse in the current job market, taking into account factors such as education, skills, work experience, and job opportunities available in their respective fields. By understanding the age, health, and employability of each spouse, the court aims to make informed decisions regarding spousal support awards that promote financial stability and security for both parties post-divorce.

Every jurisdiction weighs these factors differently and may include other considerations. Spousal support analyses are often more art than science.  There tend to be regional norms and/or general rules of thumb that may be followed in your jurisdiction so it is important to learn more and consult with a professional.

Types of Spousal Support

There are numerous types of spousal support that can be implemented in a case.  Here are the most typical types of support scenarios:

Immediate Spousal Support: Immediate spousal support is a form of financial support provided to one spouse during the divorce process, often before the finalization of the divorce settlement. This type of maintenance aims to address the immediate financial needs of the recipient spouse, ensuring they can meet needs throughout the divorce proceedings. It often provides short-term relief until a long-term spousal support arrangement can be determined or until the divorce is finalized. Immediate spousal support orders are often subject to modification once the final divorce settlement is reached, at which point the court may reassess the need for ongoing financial support based on the circumstances of the case.

Rehabilitative Spousal Support: Rehabilitative spousal support is typically short term and designed to support the recipient spouse in obtaining employment or acquiring education, training, or skills necessary to become self-supporting and financially independent. This type of support recognizes that the recipient spouse may need time and resources to reenter the workforce or pursue educational opportunities that enhance their earning potential. Rehabilitative spousal support may be awarded for a specific duration, during which the recipient spouse is expected to actively pursue educational or vocational training programs aimed at improving their employability. The duration and amount of rehabilitative spousal support are typically based on factors such as the length of time needed for education or training, the cost of tuition and related expenses, and the recipient spouse's ability to become financially independent within a reasonable timeframe. Once the recipient spouse achieves self-support or completes the agreed-upon education or training program, the rehabilitative spousal support may be terminated or modified accordingly.

Temporary or Term Limited Spousal Support: Temporary spousal support is a form of financial support provided to one spouse for set period of time. This type of support aims to address the financial needs of the recipient spouse.  Temporary spousal support may be awarded based on factors such as the income disparity between spouses, financial needs, and the standard of living established during the marriage. It provides relief for a period of time until the recipient can be self-supporting. Temporary spousal support orders are often subject to modification if circumstances change during the term, at which point the court may reassess the need for ongoing financial support based on circumstances.

Permanent or Long-Term Spousal Support: Permanent or long-term spousal support, sometimes called indefinite support, is awarded to spouses who are unable to achieve self-support. Unlike immediate, temporary or rehabilitative spousal support, which is intended to be temporary or transitional, permanent spousal support provides ongoing financial support for an indefinite duration, typically until retirement, death of either party or remarriage of the recipient spouse. This type of support is often awarded in cases where the recipient spouse is unable to work or secure gainful employment due to advanced age, health issues, or other factors that significantly limit their earning capacity. It is also sometimes awarded for long term marriages with a substantial income differential between the parties and the unlikelihood that the lesser earning spouse will achieve self-support. Permanent spousal support aims to ensure that the recipient spouse can maintain a reasonable standard of living and meet their basic needs over the long term, acknowledging their ongoing financial dependency on the paying spouse. The amount and duration of permanent spousal support are determined based on various factors, including the financial needs and resources of both parties, the length of the marriage, and the standard of living established during the marriage.

Reservation of Spousal Support: Sometimes a party in divorce isn’t sure if they can meet their own need moving forward.  They may have a new job that is tentative or at risk.  Or they may be finishing up training/education and hopeful they can obtain employment to meet need.  In this case, the court may order or parties may agree to “reserve” spousal support for a period of time.  If the period passes without change, then the support window closes and no support is needed or in place moving forward.  Alternatively, if the receiving party does need support in the reservation period, then the negotiations are re-opened and spousal support may be implemented. The reservation of support is commonly only for a year or two.

Direct Payment of Expenses: Although less common, some spousal support agreements can provide one spouse to pay direct expenses for the other, such as a housing payment or car payment. This arrangement may have particular financial benefits or provide security in both parties knowing specifically how a support payment will be used.

Calculation of Amount and Duration

Whenever you are thinking about spousal support, you have to decide on three elements:

1. How much?
2. For how long?
3. And, what modifications or changes may be needed during the term of support.  

Although some jurisdictions may provide calculators for this assessment (see warning above), most courts will rely upon a discretionary evaluation of these factors. Ultimately, you either want to land on an agreement together on support or you will present your sides to a court and receive a decision on support. Starting with an understanding of need (how much of your reasonable budget cannot be covered by income) and then considering the factors above, you need to land on an amount of support.

Spousal Support Concepts

If there is enough income between both parties to meet reasonable need, then the amount can be fairly straightforward.  It should be enough to meet the lower wage earners need. If there isn’t enough income to meet both parties’ reasonable needs, then sometimes you calculate an amount of support that will share deficits, meaning each party is in the same spot at the end of the month and would need to cut their budgets similarly.  While laws differ, spousal support isn’t typically considered an equal sharing of income. It’s not about both of you having the same amount of cash available to you monthly.  Reasonable needs should be met if possible. But the law will not typically put the higher wage earner in a deficit while meeting the lower wage earner’s budget. And a higher wage earner may continue to earn more in the future which would be to his/her own benefit. If need can be met with support, then the higher wage earner may continue to have more income available moving forward.

Some parties work out an adjustable spousal support agreement most commonly with decreasing amounts over time as the recipient’s income increases.  For example, if the recipient is new to the workforce, support may initially be based upon an entry-level income that will increase over time.  The support could go down over time to correspond with a reduced need.  Alternatively, the amount of support may adjust over time based on changes in a budget.  Some common budget changes are: reduced expenses when kids’ emancipate, ending of a debt payment like student loans or college expenses, increase in need when a new home is purchased, or less need for savings as employers provide more benefits.

Different Types of Incomes and Spousal Support

When parties have different types of income, the support calculation may be more difficult as well.  For example, a discretionary bonus or commissions (variable income) may make the calculation challenging. If need can be met based on base income alone, then the other variable income may not matter. But if there isn’t enough base income to cover support, then you may look to sharing some of the variable income to help meet need. If the recipient of support has variable income, there may need to be an adjustment to support after disclosure of actual earnings to meet need.  spousal support is supposed to be based on reality.  Realistic budgets and the actual income earned is what ideally is considered.  This may require an ongoing disclosure of income earned and sharing of variable income amounts if it impacts the calculation.

Duration of Support

The duration of support is also a discretionary analysis and based on the same factors as outlined above. Fundamentally, the question of duration is essentially – How long until the recipient can reach self-support? Some states have general rules on the duration of support often based on the length of marriage.  For example, some states have a presumption of permanent spousal support if the marriage has been a certain length or more (such as 20 years).  Others have a temporary presumption for shorter marriages or even a presumption of no support if the marriage ended within a short period, like 5 years. Other states may have rules or suggestions about duration based on the length of marriage – commonly a window of support lasting one-third or one-half the length of the marriage.  Remember that you need to understand the law in your particular jurisdiction and these are only examples.

Here are a few examples to help illustrate how support could work:

• Marriage of 30 years.
• Spouse A has been then primary breadwinner and earns $20,000 net monthly.
• Spouse B has stayed home with children and currently volunteers, could earn $2,000 net monthly.
• Both parties have reasonable budgets of $8,000 monthly.
• SUPPORT: Spouse B needs $6,000 to cover monthly expenses and Spouse A is likely able to cover this amount.
• DURATION: Due to length of marriage and ages, likely a long-term obligation.

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• Marriage of 30 years.
• Spouse A has been then primary breadwinner and earns $20,000 net monthly.
• Spouse B has stayed home with children and currently volunteers, could earn $2,000 net monthly, which is expected to increase to $3,000 new monthly after 5 years.
• Both parties have reasonable budgets of $8,000 monthly.
• SUPPORT: Spouse B needs $6,000 to cover monthly expenses for five years and then $5,000 monthly and Spouse A is likely able to cover this amount.
• DURATION: Due to length of marriage and ages, likely a long-term obligation.

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• Marriage of 2 years.
• Spouse A earns $4,000 net monthly.
• Spouse B is completing a graduate degree for 6 months and is working part-time earning $1,000 net monthly.
• Both parties have reasonable budgets of $2,500 monthly.
• SUPPORT: Both parties will meet their budgets if Spouse A pays $1,500 monthly.
• DURATION: Rehabilitative support for 6 months until Spouse B finishes graduate school and can work full-time.

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• Marriage of 15 years.
• Spouse A earns $10,000 net monthly.
• Spouse B earns $9,000 net monthly.
• Both parties have reasonable budgets of $5,000 monthly.
• SUPPORT: None needed because both spouses can meet their budgets with their income.

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• Marriage of 25 years.
• Spouse A earns $7,000 net monthly.
• Spouse B earns $5,000 net monthly.
• Spouse A has a reasonable budget of $8,500 monthly because of kids’ college expenses.
• Spouse B has a reasonable budget of $6,500 monthly.
• SUPPORT: If Spouse A pays Spouse B $1,000 monthly, both parties will have a $1,000 monthly deficit that they will need to work out individually.
• DURATION: Due to length of marriage and ages, may be a long-term obligation although both need to try and bring down budgets to make things work.

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• Marriage of 25 years.
• Spouse A earns $7,000 net monthly, and earns a target $30,000 discretionary net bonus.
• Spouse B earns $5,000 net monthly.
• Spouse A has a reasonable budget of $8,500 monthly because of kids’ college expenses.
• Spouse B has a reasonable budget of $6,500 monthly.
• SUPPORT: If Spouse A pays Spouse B $1,000 monthly, both parties will have a $1,000 monthly deficit that they will need to work out individually. If Spouse A earns a bonus, it could be equally shared up to $24,000 net to make up the annual deficits ($12,000 to each of them). The extra bonus income would stay with Spouse A.
• DURATION: Due to length of marriage and ages, may be a long-term obligation.

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Modification and Termination

After you have established how much support is going to be paid and the duration, it will typically end after the duration has passed.  There are other circumstances, however, that may result in a change in the amount or the duration in that interim time.  Your jurisdiction may have explicit requirements dictating a change in support. In most cases, you could seek an adjustment or end to support upon any substantial change in circumstances, but here are the most common triggering events for a review of support.

Death of Either Party: In the event of the death of either party involved in a spousal support agreement, the obligation for spousal support typically terminates. This termination occurs because spousal support obligations are considered personal and non-transferable, meaning they cannot be inherited or transferred to a surviving spouse or estate. Consequently, upon the death of the paying spouse, the recipient spouse no longer has a legal right to receive spousal support payments. Similarly, if the recipient spouse passes away, the paying spouse is relieved of their obligation to provide spousal support. However, it's essential to note that any unpaid spousal support amounts owed at the time of the party's death may still be enforceable against their estate. It may be helpful to consider life insurance to secure support for the recipient (see module on Life Insurance to Secure Support).

Remarriage of Recipient: The remarriage of the recipient spouse often results in the termination of spousal support payments. This termination is based on the premise that the financial support provided through spousal support is intended to address the recipient spouse's financial needs arising from the marriage that produced the obligation. Once the recipient spouse remarries, their financial circumstances are assumed to change significantly, as they now have the potential for financial support from their new spouse. Consequently, the paying spouse is typically relieved of their obligation to continue making spousal support payments. However, it's essential to review the specific terms of the divorce decree or spousal support agreement, as some agreements may include provisions regarding the impact of remarriage on spousal support obligations.

Cohabitation of Recipient: The cohabitation of the recipient spouse with a new romantic partner can also lead to the modification or termination of spousal support payments. Cohabitation involves living together in a romantic or domestic relationship without being legally married. Courts may view cohabitation as evidence that the recipient spouse's financial circumstances have changed, as they may now have access to financial support from their new partner. Consequently, the paying spouse may petition the court to modify or terminate spousal support based on the recipient spouse's cohabitation status. However, courts typically require evidence demonstrating the nature and extent of the cohabitation relationship before making a decision on spousal support modification. It is often helpful to think about this ahead of time and reach agreement on cohabitation if possible prior to the divorce.

Change in Financial Circumstances or Employment: A significant change in the financial circumstances or employment status of either party involved in a spousal support agreement may warrant a modification of the spousal support terms. Such changes could include job loss, a decrease in income, or a substantial increase in expenses. If the paying spouse experiences financial hardship or a significant decrease in income, they may petition the court to reduce the amount of spousal support payments or seek a temporary suspension until their financial situation stabilizes. Conversely, if the recipient spouse experiences an improvement in financial circumstances or becomes self-supporting, the paying spouse may request a reduction or termination of spousal support obligations based on the recipient spouse's increased financial independence.  Building in a regular exchange of income information may be helpful in regularly checking in on incomes and being sure you are prepared for any corresponding modification.

Retirement: The retirement of either party involved in a spousal support agreement can impact the continuation of spousal support payments. If the paying spouse reaches retirement age and experiences a decrease in income or financial resources as a result of retirement, they may petition the court to modify the spousal support terms to reflect their reduced earning capacity. Similarly, if the recipient spouse reaches retirement age and becomes eligible for retirement benefits or other sources of income, the paying spouse may request a modification or termination of spousal support obligations based on the recipient spouse's increased financial stability. However, the specific impact of retirement on spousal support payments will depend on the circumstances of the case and the terms outlined in the divorce decree or spousal support agreement. Certain jurisdictions may have built in rules on how retirement impacts spousal support.  Keep in mind that retirement by either party typically needs to be at a reasonable age if a modification of support is requested.

In general, spousal support obligations and agreements are open to review based upon these substantial changes at any time during the duration of support.  Even the end of support could be open to review if the circumstances of the recipient have substantially changed.  So, if Spouse B is to receive support for 5 years but becomes disabled during that period, there could be a case for increasing the duration upon Spouse B’s reduced earning capacity. The process for making these changes vary by circumstances, but typically the parties can always agree on a modification on their own or with the help of a mediator and/or attorneys.  Alternatively, if you cannot negotiate a change on your own, the party seeking a change in spousal support can file a motion in Court and work through the litigation system to ask a Judge for an ordered change. You should work with an attorney on this if needed.

Option to Have a Locked in Non-Modifiable Support Agreement

Finally, many jurisdictions allow you and your spouse to work together to come up with a binding spousal support agreement that does not have an opening for modification.  These often entail both parties waiving their rights to review or modify spousal support beyond the terms of the agreement.  Accordingly, these agreements are often called “waiver agreements” or they may be named after a court case that provided for these types of agreements.  Most commonly, these types of binding agreements provide for a set amount of spousal support for a set number of years.  The payor has the benefit of a locked in payment and no risk of a modification in the future. The benefit to the recipient is similar, but because a recipient is giving up the right to seek more support or extend the duration of support if needed, it is common to see the amount of support exceed need or the duration exceed typical norms. The payor needs to be confident they can make the payments as ordered no matter what.  If they lose their job or become disabled, they may still be obligated to make these payments.  And the recipient needs to plan accordingly and operate with a full understanding of the terms and built in changes, regardless of the actual financial situations. Courts typically do not order this type of locked in spousal support but rather it can only be negotiated between you and your attorneys and then drafted into your binding agreements.  You should consult with an attorney on these types of agreements as there are inherent benefits and risks that you should fully understand. Some jurisdictions won’t allow you to enter these types of binding agreements without an attorney because you may be giving up some legal rights.

Other Considerations

Keep in mind that any spousal support agreement made after December 31, 2018 is going to implement an after-tax payment. Spousal payments should be paid with net, after-tax dollars and is non-taxable to the recipient. So when you are working on your spousal support analysis, you should make sure you have a clear understanding of your tax situation after divorce.  Keep in mind that your tax filing status may change after divorce (from joint to either single or head of household) so you should work with a tax professional to make sure you understand the implications and make sure the numbers will work.

Spousal support is one of the more nuanced and complicated legal aspects of divorce.  If you are reaching a settlement on it, you should make sure the documents are clear and understandable and address all aspects of the support. Working with an attorney may be helpful especially in more difficult situations.  You should also know that spousal support obligations are an enforceable and mandatory payment once in a court order. Whether the agreement was reached between you out of court and then filed in divorce or if it was ordered by a court, a binding spousal support agreement must be complied with.  If a payor fails to make payments, the recipient can seek enforcement through the court with potential order for wage garnishment, contempt proceedings, or even seizing property if a payor is in non-compliance.

In conclusion, by understanding the eligibility criteria, types, calculation methods, duration, modification processes, tax implications, and legal considerations of spousal support, individuals can more confidently navigate divorce negotiations and make informed decisions.