permanent spousal supportPost-divorce spousal support (alimony) is referred to as permanent spousal support, even though it is rarely permanent.  It is called permanent spousal support to distinguish it from temporary spousal support, which applies until the divorce is final.  Spouses have wide latitude in negotiating their own permanent spousal support agreement.

There is no formula for calculating permanent spousal support.  Instead, judges must weigh 14 factors. Perhaps the most important of these factors are the standard of living during the marriage, the length of the marriage, the earning capacity of each spouse, the extent to which a spouse may have sacrificed earning potential for the sake of the family, and the objective of helping the supported spouse become self-supporting.  Other factors, such as the health of each spouse, can also play a major role depending upon the circumstances.

Marriages lasting 10 or more years are presumed to be of long duration. Judges have discretion to consider slightly shorter marriages also of long duration.  For marriages of long duration, the objective of helping the supported spouse become self-supporting is sometimes less important.  For marriages not of long duration, this objective is often primary.

For the purposes of permanent spousal support, the length of marriage is the period from the date of marriage until the date of separation.  Periods of co-habitation before marriage and separation during marriage are not normally included when determining the length of a marriage.

Components of Permanent Spousal Support

The main components of spousal support are amount, duration/termination, modifiability and jurisdiction.  The 14 factors given in the Family Code are relevant to these components.

If there are minor children involved, the amount of permanent spousal support should always be set after child support since the needs of the children are primary.  Usually the amount is a monthly figure.  The frequency of spousal support can be other than monthly.  Sometimes the amount will “step down” from one set figure to another after specified period(s) of time.  Sometimes couples will negotiate one or more lump sum payments instead of monthly spousal support.  Spousal support is normally not awarded for very short term marriages, especially when the spouses are self-supporting.

There are different types of possible duration / termination for permanent spousal support:

  • indefinite duration – until one of the spouses dies or the supported spouse remarries;
  • fixed duration – common for marriages not of long duration;
  • contingent duration – support terminates when a contingency occurs such as completion of training or perhaps cohabitation by the supported spouse;
  • “Richmond order” – support terminates on a certain date unless the supported spouse can show good cause why it should continue.

Modifiability refers to whether the permanent spousal support can be modified.  In a divorce agreement, spouses can specify that the support amount cannot be modified, or that the time cannot be extended, or both.  If they make no such agreement, the spousal support is subject to modification.  To get the court to consider a request for modification, it is necessary to show that there has been a significant change of circumstances relevant to the spousal support.

Jurisdiction refers to whether the court retains the authority to modify permanent spousal support if requested by either spouse to do so.  Spouses can agree to terminate the court’s jurisdiction over spousal support.  Terminating jurisdiction is common for short-term marriages.  It is much less common for marriages of long duration.

Permanent spousal support can include expenditures other than a monthly check or lump sum payment(s) such as:

  • maintaining health insurance for the other spouse;
  • making mortgage payments or other of the supported spouse’s future debts;
  • taking out a life insurance policy with the other spouse as beneficiary;
  • purchasing an annuity or establishing a trust to support the other spouse after the supporting spouse’s death;
  • paying the supported spouse’s attorneys’ fees.

Permanent spousal support is tax deductible by the payer providing it meets some basic tests.  If the payer deducts it on his or her tax return, the recipient must include the support received as income on the recipient’s tax return. Spouses can decide whether or not they want to consider the payments to be tax deductible and therefore the receipts to be taxable income.