One of the hardest things about filing for divorce is the fear of the unknown. Are you going to be able to afford to stay in the current marital home? Or, if you have to move, how much will you be able to afford after the divorce?
One of the questions that needs to be answered is whether or not you will have to pay spousal support, or whether you will receive it. Unlike child support, which is calculated according to a statute, spousal support is purely based on case law and the facts of the case. There are no hard and fast rules, and there is no real computation. Long ago we had a Judge in Wayne County that would often order 1/3 the difference in income between the parties for 1/3 the number of years of the marriage. This Judge is long gone and none of the other Judges seem to have a formula.
We do have something called a prognosticator, where we can put in the number of years of marriage, the income of the parties, the age of the parties, and give the party needing support a score based on their income and their highest level of education and get a suggested number. These prognosticators do not take into account all factors of spousal support.
Factors to be considered when spousal support is an issue are the following: the number of years in the marriage, whether or not the parties had children and who was the primary caretaker, the income of both parties, the education of both parties, the health of both parties, the need of one party, the ability of the other party to pay, the amount of property being awarded to both parties, the past relations and conduct of the parties (this is the only place in a divorce where fault is actually considered), and the prior standard of living of the parties.
Typically, marriages of long duration, where one party considerably out earned the other will see a spousal support award included in the settlement. Having said that, it is not impossible in marriages of short duration to offer some type of rehabilitative support if one party has been staying home by agreement of the parties and does not currently have an income to rely upon.
Spousal support can be modifiable based on a change of circumstances, or the parties can agree that it is non-modifiable. If the issue goes to trial and the Judge has to make the decision, the Judge cannot make the spousal support non-modifiable. This means that the person paying spousal support could be on the hook for payment for the rest of their lives (or until a Judge says no more based on their current circumstances. Even at that point it isn’t barred in the future if circumstances change again).
Sometimes, knowing that a Judge cannot order non-modifiable support, the parties will agree to non-modifiable support in order to limit the support to a term of years. They may make the amount modifiable based on a change of circumstances (someone loses their job through no fault of their own, or in the case of a disability) but agree that support will end after a certain number of years. Or, the person who would pay support may offer a larger settlement to the other party in order to not pay support at all, and to bar it in the future. It is important in these cases to weigh all circumstances before agreeing to any support that is non-modifiable or barred in the future.
It is important to note that each case is different and can result in a different outcome based on the individual facts of that case. Just because your best friend got spousal support does not mean you will, or the amount may vary greatly depending on the factors of your case.
Also, in recent trends, now that women are becoming high wage earners and out
earning their spouses, they too are equal in paying their spouse spousal support. We recently finished a case where the parties had been married for 18 years, wife climbed the ladder at her respective employers, husband just took a job making minimal income, and at the time of the divorce wife was making $150,000 and husband was making $70,000. Wife paid spousal support to husband.
If you are contemplating divorce and feel unsure of your future, whether on the paying end or the receiving end, it is important to consult with an attorney who can give you guidance about what to expect if you decide to divorce. They cannot give you a definitive answer, but they can give you a ballpark expectation.