PAYMENT OF SPOUSAL SUPPORT (MAINTENANCE)
Many people have questions about the payment of spousal support or what is called maintenance. The old term was alimony but the ideas are the same. In a divorce or legal separation action the court can order spousal support both on a temporary basis, while the action is pending, and on a long term basis as part of the final court order.
Can a court order spousal support on a temporary basis?
While a divorce or separation action is pending, the court can order one spouse to pay support to the other. This is a separate question from the payment of child support but of course child support payments can be a factor in the amount ordered for spousal support. In a temporary order the main questions for the court are the immediate needs of the parties including monthly expenses, debt payments, responsibilities for loan payments or health care payments, etc. The court will also take in to account the relative incomes of the parties so that the party with a significantly larger income will likely make some fair contribution to the other party so each can to the extent possible maintain the marital standard of living. Of course who is paying child support to whom is also an important consideration.
Temporary spousal support is just that, temporary, until the court makes a final decision on the long term needs and resources of the parties and it can be adjusted while the action is pending as circumstances change or the court and the parties get a clearer idea of the financial circumstances of the parties.
When will a court order long term spousal support?
Long term or permanent spousal support can be ordered as part of the final judgement in a divorce or legal separation action. Wisconsin Statute 767.26 sets forth the factors the court may consider in deciding what to do about spousal support. These factors include the length of the marriage, the age and physical and emotional health of the parties, the division of property and the earning capacity of each party, among others.
The length of the marriage is an important factor. The longer the marriage, the stronger the claim for spousal support will be. Marriages are considered to be 'long term' after about eight years. Spousal support is much more likely in a marriage of ten or twenty years than in one of only three or four years.
Another critical factor is the ability of each spouse to earn an income. The spouse with significantly higher earning capacity than the other may have to pay spousal support. In turn this can be affected by age, health, education and the contributions made by one party to the education and earning capacity of the other spouse. It should be noted that none of these factors are gender specific and women as well as men can end up paying spousal support.
How long will spousal support be paid?
The amount and duration of spousal support depends on the courts' view of all the factors in 767.26. In a long marriage the court may very well order permanent spousal support, meaning it is paid until the other party dies or remarries. Depending on the age of the parties, the length of the marriage and the likelihood a party will become self supporting, the court may limit the spousal support to a term of years, such as five or ten years or it may set a limit based on an assumed age of retirement.
Can the court modify the payment of spousal support?
An award of spousal support is reviewable by the court on the request of either party if there has been a material change of circumstances. This means if something happens to make the payment no longer fair, such as the loss of a job or the spouse receiving support making a lot more money, then the court can review the award to modify or terminate it. Retirement, the development of health problems, or significant changes in income can affect the court's decision whether to modify an award of spousal support. If a party wants the court to extend the payment of spousal support beyond a set term, he or she must file a motion for the court to review the payment before the term of the spousal support order runs out. A court can then extend the payment beyond the original term.
How is spousal treated for tax purposes?
Typically spousal support is treated as taxable income to the recipient and a deduction from income taxes for the payor. It is possible to include child support and spousal support in one payment as family support but the tax consequences should be thoroughly explored with your attorney or tax accountant.
