- Parties’ past relations and conduct
Length of the marriage
The longer the marriage, the more likely spousal support will be awarded. This is especially true when one spouse stayed at home and never developed a career.
Parties’ ability to work
The court will balance the parties’ ability to work in order to fashion an amount and time that spousal support will be paid. Obviously, a spouse that has been married for 20 years and never worked outside the home will be more likely to get an award than a spouse who has been married for 5 years and has their own career.
Source and amount of property awarded to the parties
The court will look at the property division and balance this factor. Today, this factor has become problematic due to the number of people who carry more debt than assets. In years past, the biggest asset has always been the marital home. Now, most houses are underwater and not worth anything.
Someone who is 50 will have a harder time finding a job or career than a spouse who is 25.
6. Ability to pay spousal support
6. Ability to pay spousal support
Obviously, the court is not going to order a spousal support award when the other spouse cannot afford to pay it. The purpose is to prevent one party from being impoverished.
Parties’ present situation
The court will consider different factors on present ability to pay and the present or anticipated needs of the spouse seeking support.
The court will balance the present situation against the future needs of the parties.
Health will be a relevant factor, especially if it prevents one party from working. The court will look at whether the health issue is short-term or long-term.
Prior standard of living of the parties and whether the parties support others
The court will balance the standard of living the spouse enjoyed while being married with the other spouse’s ability to pay.
General principles of equity
The court will use general fairness of spousal support with ability to pay. Generally, this is the balancing factor for all of the other factors.
Spousal support can be modified, unless the modification is waived. If you wish for non-modifiable spousal support, it must be explicitly stated in the judgment of divorce. Courts today are reluctant to grant non-modifiable spousal support.
In order to request a modification, either party must show a change in circumstances. There can be many reasons to request a modification, such as, the ability to pay has changed, expenses have increased, and/or a rise in the cost of living. The party making the request for modification has the burden to prove that there has been a change in circumstance.
The questions of how much support and how a party will receive that support will be determined by the court, assuming the parties cannot agree on an amount or time. The court will look at the education level of the parties, age, health, earning capacity, and how many children are in the custodial care of one of the parties. The court will balance all these factors and fashion a length of time and amount of spousal support.
Spousal support, unless it is non-modifiable, can terminate upon a specific event. These events include remarriage of the receiver of spousal support, cohabitation of the receiver of spousal support, and fraud. However, these events must be stated clearly in the judgment of divorce in order for the spousal support to end.
Spousal support cannot be discharged in a Chapter 7 bankruptcy or modified in a Chapter 13 bankruptcy. The 2005 Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) gave special protection for child support. The payor must still pay child support while filing for a Chapter 7 and they are given priority status in a Chapter 13. For more information see my free bankruptcy eBook, “Straight Talk About Bankruptcy: A Consumer Guide”, on my bankruptcy website.