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There are two types of spousal support, alimony and postseparation support, and both involve what one spouse, called the supporting spouse, pays to the other spouse, or the dependent spouse, for the dependent spouse's support and maintenance. A supporting spouse is the spouse upon whom the other spouse is actually substantially dependent for maintenance and support or from whom such spouse is substantially in need of maintenance and support; on the other side, a dependent spouse is the the spouse who is actually substantially dependent upon the other spouse for his or her miantenance and support or is substantially in need of maintenance and support. Forms of spousal support can be monthly, periodic payments or a lump sum payment, but monthly payments are the most common.
Postseparation support is better described as a temporary form of alimony, where the main focus is the current financial sitautions of the parties at the time of the court hearing. The goal of postseparation support is to put the spouses on an equal financial footing during the course of the litigation.
The amount and duration of alimony is based on a 15 statutory factors, including marital misconduct, but it is essential that the dependent spouse be unable to maintain his or her accustomed standard of living established prior to the separation without financial contribution from the other. Marital misconduct can include abandonment, malicious turning-out-of-doors, cruel or barbarous treatment endangering the life of the other spouse, reckless spending of income of either party, excessive use of alcohol or drugs, but it's important to note that marital misconduct is only one of 15 factors that a judge considers in awarding alimony. The other factors include the relative earnings and earning capacities of the spouses; the ages and the physical, mental and emotional conditions of the spouses, the amount and sources of earned and unearned income of both spouses, the duration of the marriage, the contribution of a spouse as homemaker, the relative needs of the spouses, the tax ramifications of the alimony award, and any other factor relating to the economic circumstances of the parties that the court finds to be just and proper. Many people assume that alimony is awarded for half the length of the marriage, but it really depends on the circumstances of each individual case, which is why it's important to discuss your situation with a knowledgable family law attorney.
A starting point for determining an amount of alimony is as follows: both spouses need to complete Financial Affidavits, which is a spreadsheet of each party's monthly income and expenses. The link to a blank Financial Affidavit can be found on the Resources tab of our website. It's important that each party's expenses are reasonable, and a good way to judge this is whether the expense is around the same amount incurred during the marriage. For example, if during the marriage the parties did not take lavish vacations, then it's not reasonable for either spouse to allot a significant amount of funds for vacations after the marriage. As a general rule of thumb, it costs more to maintain two households than one, so each spouse is expected to reduce his or her monthly expenses, but the goal is to make it more or less an equal reduction. While this is an exaggeration, one spouse should not be eating filet mignon every night while the other is eating Ramen noodles.
To determine a ballpark range of the amount of support the dependent spouse needs from the supporting spouse, subtract that spouse's reasonable expenses from his or her net income (if child support is being paid from the supporting spouse to dependent spouse, add the amount of child support to this figure). Here is a simple example, (and for argument's sake only, the supporting spouse is the husband and the dependent spouse is the wife): if a spouse has a net monthly income of $1,000 and reasonable expenses of $2,000, then her deficit is $1,000. If she is also receiving child support in the amount of $500, then her deficit is only $500. This would mean she would need at least $500 in spousal support in order to meet her reasonable needs. This amount should be "grossed up" as she will have to pay income tax on the spousal support.
In order to determine what the supporting spouse can afford to pay the dependent spouse, a similar procedure should be followed: subtract the supporting spouse's reasonable expenses from his net income. If he is also paying chid support, that should be subtracted as well. What is left is what the supporting spouse has available to pay as spousal support. Keep in mind, however, that the parties' earnings and needs are only some of the factors for the judge to consider in the alimony award, and this exercise is just a starting point.
If the dependent spouse has committed illicit sexual behavior, or having sex with someone besides his or her spouse before the date of separation, that is an absolute bar to receiving alimony. On the other hand, if the supporting spouse has committed illicit sexual behavior before the date of separation, it's an automatic grant of alimony to the dependent spouse. If both spouses committed illicit sexual behavior, it's within the trial court's discretion as to whether award alimony.