Often, when parties to a divorce are faced with multiple issues needing resolution, or are involved in a matter that does not seem difficult to resolve, spousal support is overlooked.
It doesn’t matter if a divorce is extremely complex or relatively simple. One of the more difficult concepts for the litigant to grasp, and most important to explore, is the payment of spousal support.
It was generally thought that the higher earning husband must support soon to be ex-spouse for an appreciable period of time. Historically, that belief was accurate. But in today’s economy and our ever-changing ways of life, the questions and answers relative to the issue of spousal support have become more complicated. Today, the divorce litigant must develop a realistic plan with their lawyer for the resolution of the issue of support, and it can be a very important undertaking.
There was a time when only divorces terminating a long term-marriage required a review of the issue of spousal support. Unfortunately, no one to date has defined a long-term, 21st century, marriage. Statutory language regarding spousal support talks of need and ability to pay. Need and ability to pay beg for budgets prepared by litigants. Budgets, however, seem to be a lost art for most judges. Consequently, a variety of formulas for spousal support have been developed. None of those formulas, or guidelines, are binding on anyone. Therefore, divorcing parties should inquire about the propensity of the judge assigned their case, the formulas that are often employed by that judge, and opposing counsel, and prepare to document, by way of a budget, reasons why that litigant’s situation is unique and is or is not compatible to those mathematical formulas.
Irrespective of the sex, each party must realize the high earner is the potential payor. Both parties must realistically outline how and when the lower earning spouse might realistically achieve a level of income to meet their needs.
It’s important to take into account the recipient’s education and prior work experience, but one must also appreciate the realistic likelihood that that education and/or experience may not, in and of itself, create a capacity for that person to earn adequate support. If the spouse’s educational background is inadequate, assumptions must be made on how long it will take to get an education and then the training to enable that party to return to the market place. It is also important for the potential recipient of support to understand that obtaining an education that he/she may desire may not be a viable option, if no career opportunities are currently offered in that field.
For the spouse that is a potential payor of support, the goal is to honestly evaluate what can be paid and whether it is possible for the recipient to meet current needs. Then it must be determined how long it will most likely take the recipient to become self-sufficient. Emphasis here must be on “honestly evaluate.” The spouse anticipating support should also participate in the same exercise. The recipient spouse knows, or should know, if education and/or training are necessary or if remarriage is likely in the immediate future. It is senseless for a spouse to fight for a level of support that is never intended to be used.
If at all possible, litigants and their lawyers should find a resolution to the spousal support issue. If not, both parties are left with a decision from a judge that has little time to hear the case and listen as to why support is or is not necessary, brings to the bench some pre-conceived notions, and works from a formula or guideline that may mean little to either litigant’s circumstances. Of equal concern, any ruling made by a judge can later be modified as to amount and duration. There is no finality to a judge’s ruling on spousal support. An agreement between the parties as to a set amount to be paid over a certain time will give certainty to both parties, usually resulting in something both parties can live with.