Need and Ability To Pay Spousal Support

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Spousal support guidelines vary greatly from state to state.  States have philosophical differences regarding spousal maintenance as well. Historically, most state laws encouraged women to continue to do what they did during the marriage, so women who stayed home to care for children would receive sufficient support to allow them to continue to do so.  State laws also favored women getting support over men. Some states now have support laws that are intended to encourage women to get jobs, or to go back to school for more work-related training. State laws are now generally written to provide support based strictly on the ability to earn an income and not on gender. 

Marital Standard of Living

Many states use the “marital standard” of living as a benchmark for what the standard of living should be when a couple is no longer married.  That means that a family who took vacations to Europe each summer or who had a maid should still be able to continue with those luxuries after the divorce.  That may only be true for people who have a lot of money or assets though.  When a couple divorces, they go from expenses for one house to expenses for two. The average family cannot maintain the marital standard of living after a divorce and laws will typically take the new standard of living into account.

Need for Spousal Support

Most states require couples to prepare budget sheets including monthly expenses and income for each spouse.  The courts then have to set spousal support so that each spouse can pay his/her living expenses and each spouse may have to make sacrifices to make it work.  Each spouse’s budget will be scrutinized by the other spouse. For example, on spouse may claim a gym membership is not essential and should not be part of the monthly expenses and another spouse may claim a gym membership is something she has had every year during the marriage and is part of the marital standard.  The batter over monthly expenses, or the need of each spouse, is common. 

Ability to Pay Spousal Support

The other part of the equation is the ability to earn an income.  Most laws are designed to look at what a spouse is capable of making for an income rather than what a spouse’s actual income might be.  A spouse who has been out of the work force for any time or for any reason will likely be assigned an amount of income based on his/her earning capacity, earning history, and local job opportunities for someone with similar experienced and education. 

The division of property may also be determined based on how much support a spouse will have to pay or receive.  If one spouse has more retirement funds, or is awarded more real estate, that person may end up with less spousal support because he/she has other assets from which to draw future income.

Getting Legal Help

Spousal maintenance can be a complicated legal matter that has important tax implications because unlike child support, spousal support is taxed as income to the receiving spouse and tax deductible to the providing spouse.  It is a good idea to talk to an experienced family law attorney before agreeing to any amount of spousal maintenance because it can be difficult to modify (either up or down) or eliminate in the future.

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