What is Spousal Support?

The basic goal for an award of spousal support is to ensure that a spouse will become financially independent after divorce. Spousal support, also called “alimony,” can be awarded in divorce (or separate maintenance cases) where the Court finds that a party needs support for their “suitable maintenance.” MCL 552.13. The legislature, however, has not provided guidance on what is meant by “suitable maintenance, and unlike child support, there is no objective formula that courts have endorsed to calculate spousal support. 

Child support, unlike spousal support, is calculated utilizing the objective formula of the Michigan Support Guidelines. There is no prohibition against a party receiving both child support and spousal support if the circumstances warrant both.

What Factors are Considered?

A variety of factors have been considered when answering the question whether spousal support is appropriate. Over the years, those factors have varied. 11 factors were cited in Lesko v Lesko, 184 Mich App 395, 404 (1990)), 12 factors were cited in Kurz v Kurz, 178 Mich App 284, 295(1989)), and 14 factors were cited in Olson v Olson, 256 Mich App 619, 631 (2003)) in the analysis of whether spousal support is necessary for “the suitable maintenance of the adverse party”. Those 14 factors are:

1. The past relations and conduct of the parties; 

2. The length of the marriage; 

3. The abilities of the parties to work; 

4. The source and amount of property awarded to the parties; 

5. The parties’ ages; 

6. The abilities of the parties to pay alimony; 

7. The present situation of the parties; 

8. The needs of the parties; 

9. The parties’ health; 

10. The prior standard of living of the parties and whether either is responsible for the support of others; 

11. Contributions of the parties to the joint estate; 

12. A party’s fault in causing the divorce; 

13. The effect of cohabitation on a party’s financial status; and 

14. General principles of equity.

Why is Figuring Out Spousal Support So Difficult to Answer?

After the Court has determined how the assets and debts of the parties will be divided, the main objective is to balance the incomes and needs of the parties in a way that will not impoverish either party, based on what is just and reasonable under the circumstances of the case. Zecchin v Zecchin, 149 Mich App 723 (1986).

What makes spousal support cases so difficult is that there is no statutory guidance on how the amount, duration or needs are determined, no objective formula to apply and the decision whether to award spousal support is within the sole discretion of the court, after considering a long list of factors that vary wildly in their impact given the individuality of each marital situation, and the different weight that should be given to each under those unique circumstances.

Do you Know the Important Issues Associated With Spousal Support?

There is no getting around the fact that assembling admissible evidence of the important factors is a necessary start. It is also important to talk with us about (i) What is meant by “income,” (ii) How does the Court asses the  “needs” of the parties and (iii) most importantly what is meant by “balancing” these two concepts “ in a way that would not impoverish either party”.

Getting this wrong can mean the loss of thousands of dollars in support not received or paid out by or to a party. One common mistake is to rely “Total Income,” and “Taxable Income” listed on a personal tax return. These numbers are often different from the spendable dollars available to a party for support. Owning a business that is among the assets to be divided in a divorce, and which also generates an income stream, calls for a proper calculation of the owners‘ true income while avoiding the problem of “double dipping” that income where the income is also used to value the business asset. Due to the complexities where a business asset should be valued, it is common to use experts to establish income available to a business owning party in calculating income available to pay child support or spousal support.

While efforts have been made to come up with formulas to answer these questions, the Michigan Court of Appeals has rejected that approach. Myland v Myland, 290 Mich App 691, 696 (2010). Nevertheless, do not be surprised to see lawyers sometimes resort to the formulas to begin negotiations over the issue prior to trial. 

Where a trial court applied strict application of a formula based upon 25% of the difference between the parties’ respective incomes (inclusive of imputed income), the Court of Appeals wrote: “This limited, arbitrary, and formulaic approach is without any support in the law. It totally fails to consider the unique circumstances of the parties’ respective positions and fails to reach an outcome that balances the parties’ needs and incomes. In short, we cannot sanction the use of such a blunt tool in any spousal support determination, and the trial court’s use of this formula here was an error of law.”

It can also be difficult to establish each party’s needs and prior standard of living without appropriate evidence that is quantifiable and defensible. While time intensive, it is possible to gather quantifiable evidence to support a “lifestyle analysis.” We are happy to speak with you about how you might avoid the situation and how to prove monthly living expenses, maintenance requirements and how to adequately demonstrate the amount required to support your appropriate reasonable standard of living after divorce.

Importantly, where both parties are awarded substantial assets, the focus should be on the income-earning potential of assets rather than a party’s ability to provide self-support by including the value of the assets themselves. Hanaway v Hanaway, 208 ich App 278 (1995).

Important Questions to Ask in Your Situation When Worried About Spousal Support:

Regardless of the couple, three important questions should be considered when trying to figure alimony:

1. What is each party’s after-tax spendable dollar? 

2. What are each party’s actual needs, considering both needs to survive and to maintain the lifestyle that was enjoyed during the marriage? 

3. What amounts of spousal support, if any, would allow both parties to meet their needs in a way that would not impoverish either party?

We can collaborate with you to be prepared to answer these questions through an evaluation of your facts, identification of the evidence and how to present your case in the most favorable light for the most favorable outcome in your situation.

Common Myths About Who Gets Support

Contrary to a frequent practice in some areas, in Michigan there is no sanctioned mathematical formula or computer program to calculate spousal support. More often, such formulas are considered to begin the conversation. While most practitioners and judges are familiar with a computer program that claims to compute to a fair spousal support figure, it does not take into most of the 14 factors or the unique and sometimes complex circumstances of each case. As explained by the Michigan Court of Appeals, “a limited, arbitrary, and formulaic approach is without any support in the law. It totally fails to consider the unique circumstances of the parties’ respective positions and fails to reach an outcome that balances the parties’ needs and incomes.” Myland v Myland, 290 Mich App 691, 696 (2010). Courts have made similar statements in the following cases: 

Gates v Gates, 256 Mich App 420, 436 (2003), Ackerman v Ackerman, 197 Mich App 300, 301 (1992), Korth v Korth, 256 Mich App 286, 289 (2003), Torakis v Torakis, 194 Mich App 201, 205 (1992), Richards v Richards, 310 Mich App 683, 691 (2015).

In Myland, the Court rejected the use of a strict formula of 25% of the difference between the parties’ respective incomes (inclusive of imputed income). 

When Can a Party Be Awarded Spousal Support?

After a divorce is filed, it may be appropriate to file a motion for temporary spousal support to ensure that their daily living necessities are met while a divorce case is pending. Such awards will often seem unfair because the objective is not to balance lifestyles and instead focuses on ensuring that basic needs are being met while the case is pending. We regularly navigate obtaining much needed help while a case is pending and would welcome the opportunity to help you fashion your request for temporary spousal support to ensure your well-being while going through divorce. A common mistake occurs when a party presumes that the amount of temporary spousal support awarded is an indicator of the spousal support award to be ordered in the Judgment of Divorce. That is not often the case. The advice of an attorney is essential to evaluate your temporary spousal support claim as well as the likelihood of spousal support in the Judgment granting your divorce.

Changes to Spousal Support

A party receiving or ordered to pay spousal support may be able to request changes to the award due to certain life events. On the other hand, parties may often choose to negotiate away the court’s ability to change a spousal support award through non-modifiable spousal support. While there is some comfort that comes with certainty of the amount to be received and paid, it is essential that considerable thought be given to waiving the court’s ability to modify spousal support given that circumstances could later change that strongly dictate the need for a modification.

What Happens If Someone Stops Paying

The obligation to pay for spousal support is frequently outlined in a Uniform Spousal Support Order. Spousal Support awards are also contained within the Judgment of Divorce. Each of these Orders are enforceable. Uniform Spousal Support Order will be enforced by the Friend of the Court, commonly with less urgency than if you were to seek enforcement directly through the Court. Let’s talk about your options to enforce your award or how to respond to a Motion for Order to Show Cause if you have fallen behind in your support obligations.

Getting Help With Spousal Support

Empowerment begins with education. It is not too early to learn how alimony might impact your unique situation, the evidence you should gather and your ability and/or exposure with respect to the issue of spousal support. We are here to help you understand the complexities of support, provide you with proper guidance and we can begin that conversation through a free initial consultation. Let’s talk.