When a divorce happens, alimony is not a guaranteed outcome. Another term often used in place of alimony is spousal support. Both have the same meaning which is the financial support that a person is ordered by a court to give their spouse during separation or following a divorce. To have a better understanding about spousal support, you need to be aware that in Ohio, there are two types of spousal support, temporary and permanent.
Temporary spousal support is awarded if the court determines that one party needs the financial support of the other party, during the pendency of a divorce proceeding. Temporary spousal support will continue until either the court issues a new support order or a judgment decree of divorce has been filed.
There is no set formula that the court uses to determine temporary spousal support. The court must use its own discretion in awarding temporary spousal support, taking into consideration the earnings of each spouse, other financial resources of each spouse, and the monthly household expenses.
Permanent spousal support is awarded as part of the divorce and begins after the judgment decree of divorce is issued. Permanent spousal support sounds deceiving in that permanent spousal support is not for the remaining life of the spouse receiving spousal support. The court will only issue an order for lifetime spousal support in cases of long-term marriages or where one party does not have the ability to work such as a serious medical condition that occurred during the marriage.
Factors the Court Considers
In order for the court to determine permanent spousal support, it will first consider the following factors:
- The income of the parties, from all sources. When one generally thinks of “income” they think of only the wages they receive from their employer, which includes their salary, overtime, commissions and bonuses or self-employment. The truth is, income is derived from multiple sources, including but not limited to unemployment compensation, disability benefits (worker’s compensation and social security), retirement benefits, social security spousal support that may be received from a former spouse, interest and dividend income or other sources of income you may claim with the IRS for tax reporting purposes. If you are not sure of all of your income sources, you may want to meet with an attorney to get a better understanding of what the court would consider as your income and the sources of that income.
- The relative earning ability of both parties. This is difference than actual income because it considers what each party could potentially earn based on that party’s age, education, health, background, and experience. This also protects against one party simply choosing not to work in order to avoid or obtain spousal support.
- The ages, physical, mental and emotional health of the parties.
- The length of your marriage. For example, an individual that has been married for 7 years will not necessarily receive the same spousal support award as someone that has been married for 27 years. The rule of thumb is 1/3 the length of the marriage, however, the court can make a spousal support award for any term that is supported by the evidence.
- Whether it would be inappropriate to require a party that will be the custodial parent of minor children to seek employment outside of the home.
- The standard of living that had been established during the marriage.
- The education of both parties.
- The assets and debts of the parties, including but not limited to any court-ordered payments by the parties.
- The contribution of each party to the education, training, or earning ability of the other party, including any party’s contribution to the acquisition of a professional degree of the other party.
- The time and expense necessary for the spouse who is seeking spousal support to acquire education, training, or job experience so that the spouse will be qualified to obtain appropriate employment, provided the education, training, or job experience, and employment is, in fact, sought.
- The tax consequences, for each party, of any award of spousal support.
- The lost income production capacity of either party that resulted from that party’s marital responsibilities.
- Any other factor that the court expressly finds to be relevant and equitable.
Court Determines Amount and Terms of Spousal Support
Once the court has considered all of the factors, then, and only then will the court determine the amount and length of time that an individual will receive spousal support.
In dissolution cases, the length and amount of spousal support must be agreed upon by the parties using the same factors the court would consider in a contested divorce.
The award of spousal support by the court is typically a monthly payment of a fixed amount, payable in gross installments, as the court determines to be fair and equitable. However, the court also has the authority to make an award of spousal support in the form of property, although this is less common.
After the court has determined the amount and length of time that an individual will receive spousal support, an order is issued. The actual order for spousal support is contained in either a separation agreement or judgment decree of divorce.
As part of the order for spousal support, the court can include a provision in the support order stating that the court retains jurisdiction over the matter of spousal support for purposes of a modification upon motion of either party. The party requesting the modification of spousal support would need to demonstrate to the court that there has been a material or substantial change of circumstances of either party that could not reasonably have been anticipated at the time of the original decree. A change of circumstance includes:
- Either an increase or decrease in a parties economic conditions which would include income or assets;
- Remarriage of the recipient;
- Death of either party;
- Cohabitation of a receiving spouse in certain circumstances;
- Retirement; and
- Other circumstances in the court’s discretion.
If the court’s order does not contain any statement that the court retains jurisdiction, then spousal support is not modifiable and will only end when the length and payment of all spousal support has been paid.
Remember, spousal support is not gender specific, with both men and women paying support or receiving support. If you have additional questions regarding spousal support, you should consider contacting the attorneys at Kirkland & Sommers Co. LPA. We have five attorneys on staff who only practice in divorce and family law.