Spousal Support Factors - show me the money!

*Note:  This is the first part in a series of articles about Spousal Support.

I figured I should get the factor-specific articles out of the way since I seem to be on a roll with them lately.  This time, however, I’m focusing on the spousal support (or alimony) factors, which are a little trickier than child support.  Most people agree that child support should be paid because they see the money as benefitting their children (although I’ve often heard that mom just goes out and spends Tommy’s support on some sweet new shoes and hairstyle for herself.  Honestly though, those cut and colors are expensive). 

Spousal support is not a “guaranteed right,” as much as anything in the legal world can be considered guaranteed.  Unlike the Michigan Child Support Guidelines, which are to be followed unless the parties agree to deviate from them, the Michigan Spousal Support Guidelines are just that – guidelines.  Nothing is really mandatory and it is routinely said that spousal support guidelines are both high in terms of the dollar amount and the years of recommended support.

The factors for determining spousal support are outlined in various cases, the two big ones being Parrish v Parrish, 138 Mich App 546 (1984) and Sparks v Sparks, 440 Mich 141 (1992).  The first four factors will be examined in this article and the next two articles will finish them off. 

The first factor is “the past relations and the conduct of the parties.”  This is where everyone plays the blame game and talks about how promiscuous, abusive and overall awful their spouse was during the marriage.  As I’ve said before, I personally think the promiscuity part has significantly less impact on the court’s decision than it used to back in the day.  If there are repeated offenses, domestic violence or actual evidence of really lousy behavior, then you have a better shot at this factor panning out for you.  It’s been my experience that all my clients think their spouses were total arses during the marriage (hence the divorce), and one’s behavior can be very subjective depending on who you’re talking to.

The second factor is “the length of the marriage.”  This is a no-brainer – the longer you’re married, the more likely you’re going to qualify for a potential award of spousal support.  There aren’t a set number of years, but I’d say on average the awards are for those couples who have enjoyed not so wedded bliss for 10 or more years.  However, note that the courts will not consider your courtship or the time period that you “resided in sin” as part of this overall number.

“The ability of the parties to work” is factor tres.  If you’re able to work, you’re less likely to need moolah from your former spouse.  On the flip side, if your sugar daddy or momma can’t work, you’re less likely to extract money from them in the form of spousal support.  I run into cases where one spouse has been a “stay at home mom/dad” and really hasn’t had that much work experience; therefore, her or his ability to quickly secure employment is not as likely as those cases where both parents worked throughout the marriage.  If the parties are older or disabled, this also impacts their ability to hold a job.

The last factor for this article’s examination is “the source and amount of property awarded to the parties.”  Case law has held that one party should not have to drain his or her property awarded in order to survive if spousal support is a reality.  As was so aptly put by the Michigan Court of Appeals in Hanaway v Hanaway, 208 Mich App 278, 296 (1995), “…where both parties are awarded substantial assets, the court, in evaluating a claim for alimony, should focus on the income-earning potential of the assets and should not evaluate a party's ability to provide self-support by including in the amount available for support the value of the assets themselves.  Given the length of the marriage, the magnitude of the marital estate, and defendant's capital position and earning potential after the divorce, [Mrs. Hanaway] should not be expected to consume her capital to support herself.”

The next four factors are up for consideration in April.  Spousal support is a hard pill to swallow, so if your attorney thinks you might be on the hook, bring a big bottle of water with you to keep it down.

Separate Maintenance v Divorce - What's the difference?

Let’s say you like your spouse, but you don’t “like them” like them.  You don’t necessarily want to divorce him but you sure as heck don’t want to be completely committed to him either.   If this is the case, you may want to file a “separate maintenance” action.  The most common reasons that people choose a separate maintenance action are because they have very strong religious beliefs against an actual divorce, or that they don’t want to lose the health care insurance that their spouse provides, most likely through their employer. 

You see, once a couple is divorced, they are no longer eligible for health care insurance through their former spouse’s employer unless it’s through COBRA.  COBRA is ridiculously expensive and can only be used for a maximum of 36 months.  However, a lot of companies are now treating separate maintenance actions the same as a divorce – just like having a baby is a qualifying event to change coverage (albeit a much happier one), separate maintenance actions also set off that alarm for HR to make changes to qualifying dependents on the employee’s health insurance policy.  For example, my hubby’s employer would kick me off his policy if we were “legally separated,” which is what a separate maintenance action would be considered.

To file for separate maintenance, you’ve got to follow the same rules as if you were filing for divorce.  In turn, the court can divide your property, award assets, distribute debts, order support payments and award custody and parenting time rights.  A Judgment of Separate Maintenance is filed instead of a Judgment of Divorce.  It’s still one stop shopping except that you’re not actually divorced.  Don’t think you can go out and get remarried the next day.

There is a catch – if your spouse wants to be divorced, he or she can file a counterclaim for divorce and there isn’t really anything you can do about it.  You cannot force someone to stay married to you (just like you can’t force your spouse to quit watching ESPN 24/7 – with all those universal remotes, no matter how many times you hide or throw them away he can always buy another one).  So if your hubby files a counterclaim for divorce, your separate maintenance action is out the window unless he changes his mind (unlikely, especially if you actually have been throwing out the remotes).

Separate maintenance actions are nowhere near as common as divorce actions, primarily because if you’re going to carry on like you are divorced, you might as well be.  Besides, if you find your new Prince Charming, you want to truly be single so you can tie that knot again!