If you are going through a divorce and are the low-wage earner (i.e., stay-at-home mom) and want to obtain an Order for spousal support, it is in your best interest to immediately request a court hearing. If you do nothing, you may unknowingly waive your right to receive spousal support for any time prior to the filing of an Order to Show Cause.
If you are going through a divorce and are voluntarily giving your spouse money, you may not be able to take advantage of the tax deduction that may be otherwise available.
During a divorce, one party may seek a Court Order requiring the other party to pay spousal support. Generally speaking, payments of spousal support are includable as income to the payee spouse and tax deductible to the payor spouse, providing certain conditions are met.
Are spousal support payments tax deductible?
In order for spousal support payments to be tax deductible, they must be made pursuant to Court Order or written separation instrument signed by the spouses and clearly establishing the support obligation. Also, in order for spousal support payments to be deductible, you and your spouse must file separate tax returns for that tax year. You may be able to deduct spousal support payments even if you and your spouse continue to share a residence during the post-separation period. Other rules may apply after a Final Judgment has been entered.
Temporary Spousal Support
The purpose of temporary spousal support before the divorce becomes final is to maintain the marital standard of living. (Please note that there is a different standard for a permanent spousal support award.)
Because maintaining two households is more expensive than maintaining one household, you may experience a change in the lifestyle you were accustomed to living during your marriage. Do not automatically assume that any spousal support payable to you will be enough to pay rent, food, and other household expenses. It is very important to plan your financial future very carefully to ensure that you will be able to support yourself until you are able to make the shift back into the workforce.
Permanent Spousal Support
Unlike child support payments, there is no set formula for awarding spousal support on a permanent basis or for a specific period of time. The amount and duration of spousal support on a permanent basis requires that a court consider many factors, including but not limited to:
- The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following: 1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment, and 2)The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
- The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.
- The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.
- The needs of each party based on the standard of living established during the marriage.
- The obligations and assets, including the separate property, of each party.
- The duration of the marriage.
- The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
- The age and health of the parties.
- Documented evidence of any history of domestic violence between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.
- The immediate and specific tax consequences to each party.
- The balance of the hardships to each party.
- The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration, a “reasonable period of time” generally shall be one-half the length of the marriage. However, the Court has discretion to order support for a greater or lesser length of time, based on any of the other factors and the circumstances of the parties.
- The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award.
- Any other factors the court determines are just and equitable.
What if my spouse does not want to work?
Courts can impute income to a party based on that party’s “earning capacity.” While a Judge cannot force a person to work, if your spouse chooses not to work, the Court