Child support is largely determined by statutes that have formulas for figuring out the amount of support to be paid. Statues and case law also set the rules for spousal maintenance, or alimony, but the judge determines the amount to be paid. Spousal maintenance is a payment from one spouse to the other for the recipient's support. If the parties litigate this issue, a judge has discretion to decide the amount and duration of a spousal maintenance award.
An important characteristic of spousal maintenance is that it is paid with before-tax dollars. If you're the payor, when you do your income taxes, you deduct spousal maintenance payments off the top before determining your gross taxable income. This means it's much cheaper to pay spousal maintenance than it is to pay child support, which is paid with after-tax dollars. For instance, if you're in the 40 percent tax bracket, your spousal maintenance costs you 60 percent of its face amount.
In Texas, spousal maintenance is only available when the parties have been married at least ten years, and then it is limited to a maximum of $2,500 a month for three years. Homemaker spouses try to get out of Texas for their divorces. Payor spouses try to get in.
Spousal maintenance is taxable income to the recipient. Usually a person who receives spousal maintenance has little earned income and is living in the house with the children, and thus gets a deduction for the mortgage interest and as head of household for tax purposes. The recipient spouse usually has a minimal income-tax liability; therefore, paying spousal maintenance can stretch a family's dollars. It's an important tax-planning tool.
Of course, if you are the payor spouse, you may feel that your spouse does not deserve this extra money. Even if you make $50,000 a year and your wife makes $25,000, the court could order you to pay spousal maintenance, especially if you have a long-term marriage. The court will try to equalize the income from both parties. Try to weigh all the tax and other benefits to you, your spouse, and most importantly your children prior to litigating this issue. If you work together with your spouse and are both reasonable, you will probably be able to come up with a solution that works for you both.
Some Alimony History
Before 1950, courts routinely awarded homemakers, typically female, lifetime spousal maintenance, unless the woman had misbehaved, committed adultery, or abandoned the marriage, for example. At that time, most married women were unemployed and totally dependent on their spouses for support.
After the women's liberation movement, judges' attitudes toward spousal maintenance changed, and the awards dried up. This was particularly difficult for the fifty-five-year-old woman who had never worked outside the home. A judge was likely to give her $400 a month support for ten years, even if her spouse could afford to pay substantially more. The harsh results of these court decisions led to yet another turnaround. Today courts are again awarding lifetime spousal maintenance to spouses who have been career homemakers, and the awards are usually sufficient to enable these dependent spouses to meet their financial needs.
Spousal maintenance can be temporary or permanent. Most states' statutes give judges some guidance here. Temporary spousal maintenance is often awarded in a shorter marriage where the homemaker spouse had a decent job before the children were born and, with some educational or vocational updating, can get back into the job market.
You may be tempted to make your spouse pay alimony for reasons other than financial need. Again, try to not let your emotions get the best of you. It's better for all of those involved if you can work on a way to become financially independent and move on with life.
Sometimes spousal maintenance is awarded for a specific number of years. The number of years is usually based on a period of time that the judge has determined will allow the spouse to become self-supporting. Sometimes it's a period of years necessary to complete a degree or master's level education program. Other times it's based on a number of years the person will need to advance to a higher paying job in their field of employment.
When the parties can't agree about temporary spousal maintenance, they may hire a rehabilitation counselor to evaluate the skills, interests, and employment opportunities of the spouse seeking maintenance. This counselor can provide guidance to the parties and, if necessary, to the court on what it will take to get this spouse back in the job market.
When a court is asked to decide permanent maintenance, statutes and case law usually provide guidance. Most state laws set out certain factors that should be considered — length of the marriage, or if the marriage is less than ten years, a very good reason why the homemaker spouse cannot re-enter the work force. Maybe young children are at home or the spouse has serious health issues or a disability. A judge is directed to determine whether the spouse seeking maintenance lacks enough property to generate independence or is unable to provide adequate self-support.
When a judge decides the maintenance amount, he must consider a number of factors, for example: the standard of living enjoyed by the parties during the marriage, the payor spouse's ability to pay, sacrifices made by the homemaker spouse in terms of giving up a career, and the ability to provide for retirement. The judge can also consider factors that might limit the payor's liability, such as a spouse's wrongdoing during the marriage or an intentional misuse of assets. Some laws state that if a judge can't conclude a homemaker spouse will some day be self-supporting, he should award permanent maintenance. The obligation to pay spousal maintenance usually ends when the payor dies or when the payee dies, remarries, or otherwise becomes self-supporting. Sometimes it ends when the parties reach Social Security age and the nonpayor spouse is able to collect on the earnings record of the payor spouse.
Once an award of spousal maintenance is made, it is difficult to change absent a significant change of circumstances. Either party can seek modification of spousal maintenance before that term ends if circumstances warrant an increase or reduction. Some examples would include gain or unintentional loss of employment, injury or disability, extraordinary medical expenses, and marriage by the recipient spouse.