Among the various decisions and surprises that you may face as part of your divorce is establishing how much alimony will be paid by one spouse to the other. This can be a vexing problem because where child support is set using a cut-and-dry calculation, alimony is determined using a much more subjective procedure.
For the purposes of discussion, assume we’re talking about a fairly common situation where both parties work; the husband makes more money than the wife (although it’s now common for the wife to have the higher income); the two kids will be with the wife most of the time; and the parties have many assets they will divide, including the home, retirement accounts, vehicles, and bank accounts.
Is there a need for alimony?
In this case, the wife may request some form of alimony in order to help her maintain a reasonable standard of living. The first question that will be considered by the court is “Does the wife need alimony?” This makes sense, as if she cannot establish a need for additional support, there’s no reason to go any farther in the analysis.
To answer this question, the court will need to look at her existing income and the expenses she will encounter maintaining a separate household. While her living situation cannot be more plush than what she enjoyed during the marriage, she is not required to subject herself to a significantly reduced standard of living either.
It can be important to consider that in this example the wife will almost surely be receiving child support from the husband as well, which contributes to her income.
Does the other spouse have the ability to pay?
This step is also a product of common sense. Even if the wife can demonstrate to the court that she is in need of alimony, there can only be an award if the husband has enough extra income to pay her.
As with the wife, the court will look at the husband’s income and expenses to determine if there are funds available that can be paid to the wife. Here again, the court will not expect the husband to reduce his lifestyle simply to free up income for the wife.
Other important factors
Once it has been established that one spouse needs support and the other spouse has the ability to provide it, Tennessee statues direct the court to consider a variety of criteria including:
- The earning capacity and expenses of each spouse.
- The education and experience of each party, along with the need of either party for additional training or education.
- The length of the marriage.
- The age and mental health of each party.
- The physical condition or disability of each party. This can include a debilitating disease which will cause incapacity in the future.
- Whether it may be preferable for either party to refrain from employment in order to care for children.
- The amount of property owned by the parties.
- The division of marital property.
- The standard of living the parties enjoyed during the marriage.
- The contributions both parties made to the marriage. This includes support from a homemaker spouse that enables the other spouse to increase his income.
- The fault of the parties, if the court believes the fault is important.
- Whatever other factors may be necessary to arrive at an equitable arrangement.
- Income from profit sharing plans or disability insurance
- Workers compensation benefits
- Tax consequences to either party
- Whether either party has wasted marital assets
- The need for one party to reimburse the other
Future posts will examine how some of these factors may influence the amount of alimony in your case.
What you need to know
The court has a lot of discretion when it comes to setting not only the amount of alimony but how that alimony will be paid. Obviously the amount you will either pay or receive can be affected by a lot of factors that may influence the judge. If alimony is a possibility in your case, you need an experienced attorney to help you discover the true financial position of your spouse, and any other information that might be helpful to you. Contact me to find out how I can assist you.