Spousal support is a hard conversation and can put you at odds with your spouse. The more one of you has, the less the other does. But it’s very possible to move from this more limited view by including more details to your negotiation, such as how long support will be paid, whether the support amount will change over time, and when it will end. If you do, you have a better chance of reaching a spousal support agreement that meets both your needs and minimizes the tension between you.
Spousal Support Basics: The premise for spousal support is that the lower earner, the supported spouse, doesn’t have the same ability to maintain his or her lifestyle as well as the higher earner, the supporting spouse. In order to maintain that lifestyle or even just to be able to pay expenses, the lower earner will need the financial support of the other spouse. The longer a couple is married, the longer the lower earner can receive support.
If your marriage is less than 10 years long, referred to as a short-term marriage, spousal support is paid for half the length of the marriage, except in very unusual circumstances. The marriage is calculated from the date of marriage to the date of separation. For example, if the couple was married for 7 years, the supported spouse would receive three and a half years in spousal support. After support is paid for that time, spousal support terminates, that is, you can no longer get spousal support from your spouse.
For marriages that are 10 years or longer, referred to as a long-term marriage, the judge is not allowed to terminate spousal support with the final divorce. But, after the divorce is final, the supporting spouse can go back to court to request that it be terminated. To be successful, the spouse will need a valid reason like the supported spouse hasn’t made any efforts to be self-supporting, or he’s now retired and doesn’t have the ability to continue paying support.
Even if you have a long-term marriage, you don’t have to wait. If you both agree to put in a date for termination from now, you can include that in your divorce agreement. You want to be careful in doing so since it’s not required and you cannot predict the future. If you have a short-term marriage, you can also agree to a different length of time, other than half the length of your marriage.
Whether you have a short or long term marriage, all support orders automatically terminate if the supported spouse remarries or if either of the spouses die.
Support Payments: The amount of spousal support depends on a number of issues, the most important being the amount of income each person earns.
Income is broadly defined. It includes all kinds of income such as salary, bonuses, commissions, employee benefits, and investment income. It even includes non-cash benefits like an employee car, parking reimbursement, or cell phone.
If either party’s income is less than what he or she could earn, the court can look at that spouse’s ability to earn income, not just what the spouse is actually earning. If the earning potential is more than actual income, the judge can use the spouse’s earning potential instead of actual income, referred to as imputed income.
Spousal support is paid monthly on regular or recurring income, like salary, usually one-half on the first and one-half on the 15th of the month to correspond with pay periods. For irregular income, income that fluctuates either by time or amount, a percentage of the irregular income is paid in support when the income is received, referred to as additional spousal support or bonus pay. There’s no rule as to when it has to be paid. You can agree that it’s paid within 30 days, quarterly, semi annually, or annually.
If you are required to pay spousal support, it’s also very important that you do not pay your spouse in cash. It will be hard to prove that you paid your spouse, which you might have to do if your spouse later alleges you didn’t pay or you have to prove the support was paid for an audit. Use a trackable method like check or direct deposit.
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