Discover what a judge considers when establishing the suitable amount of alimony one spouse is required to pay to the other.
Comparative to child custody cases—where judges are required to choose which parent a child will reside with—setting an alimony amount is a walk in the park. Each state has a statute mandating what factors need to be considered in setting alimony.
To put it simple, when setting the amount of alimony required to be paid, courts consider:
- how much money each individual could logically earn each month
- what the logical expenses will be for each of one them, and
- if an alimony granted from one to the other would make it feasible for each to move forward with a lifestyle moderately close to what the spouses had prior to them splitting—referred to in divorce law as “the standard of living established during the marriage.”
As is many times the case, when there is not enough money for making it possible for the individuals to restore something close to the marital standard of living, then a lot of judges are going to look for ways to make the divorcing spouses share the financial burden equally.
For instance: The math works out like this in a common alimony case. Perhaps a husband that files for divorce earns $5,000 a month. His wife is a stay-at-home mom with three younger children and receives no income. Using their state’s procedure, she’s entitled to $1,650 child support each month. But she persuades the judge that her total lowest level requirements, including the house payment, are $2,200. When the judge is persuaded her budget is sound and that her husband is able afford it, she would be awarded $650 in spousal maintenance: $2,200 minus $1,650.
Are Savings Part of a Standard of Living?
In a lot of states, the law declares when setting alimony, the judge needs to determine how much support it would take each of the parties “to maintain the standard of living established during the marriage.” This can bring up questions concerning how a court needs to set and assess a certain standard within the “standard of living.”
For instance, think about the married couple that agreed that it was vital to put a generous amount of their income into a savings account. Now that they are getting a divorce, should that routine be determined to be a part of their standard of living? Courts in California, North Carolina, Virginia, and Wisconsin have affirmatively answered that question. Courts in Florida and Hawaii have discovered it to be the opposite.
In one of the California outcomes, the court noted that: “We fail to see why Wife should be deprived of her accustomed lifestyle just because it involved the purchase of stocks and bonds rather than fur coats.” (In re Marriage of Winter, 7 Cal. App. 4th 1926 (1992).) Addressing the case of the supported spouse, the Hawaii court considered that “the ability to continue to save and build up one’s net worth is not a valid standard of living consideration justifying the award of increased alimony/spousal support.” (Kuroda v. Kuroda, 87 Haw. 419 (1998).)
The Outcome: The courts in your state might or might not have taken a position on this and many comparable questions. There’s plenty of room for disputes. Discover your state’s stand, either through an attorney or by yourself. Subject to what you find, it may be wise to retain an experienced family law professional for representing you.
The 40 Percent Rule
If you are faced with an order that is going to leave you with less than 40% of your take home income, notify the judge of that. But doing it as a hidden threat—”If that is all you are going to leave me, I might as well quit my job and move to Brazil” —would be a misjudgment. A lot of judges are not fans to those kinds of threats. Alternatively, maybe be a little astute about it, like: “The amount my spouse is asking for leaves me with less than half of my paycheck each month.” And it could very well persuade a judge eliminate “the goose laying the golden egg.”
The Underemployed Spouse
Being noted, alimony is usually based principally on what each of the divorcing spouses “reasonably earn.” Meaning that if an individually is intentionally working at a job that pays less than what they could take home, the courts are going to sometimes figure in the alimony amount based on a higher amount, in what is called imputing income for support.
For instance, when a school teacher that earns $55,000 a year determines teaching is just too draining and instead take a job as a clerk in the county clerk’s office for $40,000 a year, a judge might determine to figure the alimony amount based on the teacher’s degree of income. And when a professor was taking in $180,000 a year in a big university, but then chooses to move to a small community college and makes just $95,000 a year, a judge might impute income to the professor by determining the spousal maintenance amount on $180,000—the higher income.
When facts like these happen, the individual who has switched jobs is going to usually be expected to submit proof on why personal factors like pressure made the switch necessary. Sometimes a therapist is called as a witness to back up the requirement for the switch. The individual opposing a decrease in support might succeed by proving that the lifestyles of those that are being supported are going to be severely impacted by the absence of significant alimony payments.
Court determinations in this setting are going to often be subject to the precise terminology of the state law on alimony and the court’s assessment of the sincerity of the supporting spouse.
Source:
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Roderic Duncan, J. (2018, September 19). How a judge decides the alimony amount. www.divorcenet.com. Retrieved November 2, 2021, from https://www.divorcenet.com/resources/divorce-judge/how-judge-decides-alimony-amount.htm.
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