Will the Judge Order Spousal Support in My Divorce?
There is No Specific Formula for Spousal Support
Unlike with child support, there is no formula that will tell you whether or not you will get spousal support or how much you will get. Spousal support is decided on a case-by-case basis.
Sometimes spousal support is needed to make sure both parties are taken care of after a divorce. Spousal support may be ordered if one party’s property award is not enough to support him or her properly. It may also be ordered if one party will be financially worse off after the divorce and the other party can pay some money to make up the difference.
Spousal support is not simple. If you want to ask for spousal support, you may want to talk to a lawyer. If you have low income, you may qualify for free legal services. Whether you have a low income or not, you can use the Guide to Legal Help to find lawyers in your area. If you are not able to get free legal services but can’t afford high legal fees, consider hiring a lawyer for part of your case instead of the whole thing. This is called limited scope representation. To learn more, read Limited Scope Representation (LSR): A More Affordable Way to Hire a Lawyer. To find a limited scope lawyer, follow this link to the State Bar of Michigan lawyer directory. This link lists lawyers who offer limited scope representation. You can narrow the results to lawyers in your area by typing in your county, city, or zip code at the top of the page. You can also narrow the results by topic by entering the kind of lawyer you need (divorce, estate, etc.) at the top of the page.
You and Your Spouse Can Agree on Spousal Support
Spousal support is part of the overall property division in a divorce. You and your spouse can try to work out a property settlement yourselves. This includes whether one party will pay spousal support and how much it will be.
If You and Your Spouse Don’t Agree, the Judge Will Decide
If you or your spouse asks the judge for spousal support, the judge will consider:
How each party behaved during the marriage. The judge will look at the spouses' conduct and who was at fault in the breakdown of the marriage. However, fault alone will not justify an award of spousal support.
The length of the marriage. The longer the marriage, the more likely the judge is to award spousal support. This is most important if one spouse doesn’t have a career or job skills.
Whether each party can work. The judge is more likely to award spousal support to a person who can’t work or is unlikely to find work. Spousal support might be short term to give the person time to finish school or gain job skills.
How much property each party is getting in the divorce and whether the property is “liquid.” The parties' property and debts are divided in a divorce case. When deciding whether one person needs spousal support, judges consider the type and amount of property each party is getting. A person is normally not expected to use their property award to pay everyday living expenses. It may be appropriate for the judge to award spousal support to a party who is getting mostly non-cash assets.
The ages of the parties. An older person who has not worked during the marriage is more likely to need spousal support. But if the other spouse is retired and living on a fixed income, that could weigh against awarding spousal support, especially if the party who would get the spousal support is younger than retirement age.
Whether either party can pay spousal support. The judge will balance how much the paying spouse can earn with the other spouse’s ability to support herself or himself.
The current living situation of the parties. The judge will consider things like each spouse's earning potential and career prospects.
The needs of each party. The judge will consider how the needs of each party contribute to their need for spousal support or affect their ability to pay spousal support.
The health of each party. A party's health is especially relevant if it affects their ability to work and meet personal needs.
The prior standard of living of the parties. The standard of living during a marriage is a starting point for deciding whether either spouse should pay spousal support. In some cases, a person has the right to continue to enjoy the same quality of life they had during the marriage. If divorce means one spouse will stay at the marital standard of living and the other won’t, the judge may use spousal support to even things out.
Whether either party has other people to support. The judge will consider how either spouse's responsibility to support others affects factors such as their ability to work or their ability to pay support.
What each party has contributed to the joint estate. The judge will consider what each party contributed to the marriage. This does not just mean contributing by earning money. If the other spouse contributed by raising the children, for example, the judge may consider the spouses' contributions equal.
Whether either party lives with someone else. The judge will consider whether a party lives with someone else and the effect this has on their financial status.
Fairness. The judge will consider what is fair and reasonable when deciding whether to award spousal support and what amount to order.
The judge will make a decision about spousal support based on the factors above and anything else that may be important. The judge does not have to give the same weight to each factor. The judge must make findings on each relevant factor if one party requests spousal support.
How Long Will Spousal Support Be Paid?
Sometimes a judge orders spousal support to be paid all at once. This is called "lump-sum" spousal support. Other times spousal support is paid over time, in monthly or yearly payments. This is called "periodic" spousal support.
Periodic spousal support can be temporary or permanent. Temporary spousal support can give a person a chance to get a degree or gain job skills. It can last for a specific number of months or years, or until a specific event. The event could be the death of either party, the remarriage of the party getting the spousal support, or when a specific amount of support has been paid.
A judge is more likely to award permanent spousal support in long-term marriages. This is especially true if the party getting the support is older than 60, has little education or work experience, and has little or no income. Even if spousal support is called “permanent support,” the payments may end at retirement when the parties start sharing in pension or retirement benefits.
Either party can ask for a change in periodic spousal support unless the parties agree in their Judgment of Divorce not to allow changes. A judge will normally only change spousal support when there are new facts to consider or when one party’s circumstances have changed.
Lump-sum spousal support is more difficult to change than periodic support. A judge will not change lump-sum spousal support because of a change in circumstances. One of the few reasons to change lump-sum support is fraud, which can be very difficult to prove.
The Uniform Spousal Support Order (USSO)
Whenever spousal support is awarded, the judge enters a special order called a Uniform Spousal Support Order (USSO). The USSO states the terms of the spousal support award. This includes how much will be paid, for how long, and how payments are made.
How is Spousal Support Taxed?
In general, for judgments of divorce entered before January 1, 2019, periodic spousal support payments are taxable income to the person receiving the support and deductible for the person paying.
For divorce judgments entered on or after January 1, 2019, spousal support will not be taxable to the person receiving support nor deductible to the person paying.
If spousal support is an issue in your divorce, consider talking to a lawyer to make sure you understand how it will affect taxes. If you have low income you may qualify for free legal services. Whether you have low income or not, you can use the Guide to Legal Help to find lawyers in your area.
Asking the Judge for Spousal Support
It is not simple to prove that you should get spousal support. If you think you should get spousal support and want to ask for it in your divorce, talk to a lawyer. You can't use the Do-It-Yourself Divorce forms to ask for spousal support. The forms will not include a spousal support request. You can use the Guide to Legal Help to find lawyers in your area.