By Michael Franklin
One of the most common questions when going through a divorce is; how is spousal support determined? Spousal support also known as alimony can be difficult to understand. When you hear about divorces involving people who are rich and famous, alimony payments can be in the millions. However, what if you or your spouse don’t earn more than six figures? Does alimony still come into play? The answer is simply that it could. Alimony is based on the financial situation of each spouse.
In Massachusetts, alimony can be awarded to either spouse, and is gender neutral. The judge bases the decision on several factors such as –
- How long the marriage lasted
- The age and health of each spouse
- The income of each spouse
- Employability or employment of each spouse
- Any training required for one spouse to find employment
- The contribution of each spouse to the marriage
- The standard of living during the marriage
- The liabilities of each spouse
While there is no set formula for determining spousal support, there are laws in Massachusetts that require that spousal support not exceed the recipient’s need or up to 35% of the difference between the income earned by each spouse. Judges have much discretion in determining whether there is a need for spousal support and whether a party has an ability to pay it.
Child support can affect the amount of spousal support. The court determines whether the party paying child support can also pay spousal support. While one spouse can receive both child support and spousal support, the amount of child support paid will be deducted from the payor’s income in the calculations for spousal support. In some cases, this will reduce the income to a level where spousal support is not awarded because of that party’s inability to pay both child support and spousal support.
Child support and spousal support have different tax implications for the parties. Spousal support is deductible for the payor while child support is not. Further, spousal support is considered taxable income to the recipient, while child support is not.
According to the spousal support statute, payment of spousal support is usually determined for a fixed period of time based on the length of the marriage. Even with long term marriages of twenty years or more spousal support does not usually continue beyond the age that the payor is eligible to collect social security. If spousal support is not paid, a wage garnishment can be put in place. Spousal support owed cannot be discharged by bankruptcy as debt.
When filing for divorce, if you feel that you are eligible for spousal support, you can discuss it with your attorney to determine if it’s a possibility. The court will make the final determination.