Child Custody And Divorce: Free Legal Advice
Child Custody And Divorce: Free Legal Advice
Child Custody And Divorce: Free Legal Advice
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Probably the least understood aspect of divorce is the concept of alimony. Alimony, in Michigan, means "fairness", and whether or not most litigants would agree with me (they won't), the judge is trying to be "fair" to both parties when he makes, or refuses to make, an alimony award.
A divorce court has the discretion to award alimony as it considers just and reasonable. That language is from the state statute (MCL 552.23; MSA 25.103), and should not be read as a requirement, or that alimony is somehow mandatory. It certainly is not. There are certain factors that the judge is obligated to consider, when deciding whether to make an alimony award. These include the length of the marriage, the parties' ability to pay, their past relations and conduct, their ages, needs, ability to work, health, and fault, if any, and all other circumstances of the case. That's right "all other circumstances of the case", which, of course, will be different every time, won't they?
The alimony issue has two questions, which are related, but they are different: the first question must be "Is alimony appropriate, or fair, in this case?" The judge will decide based on the factors above, and then the second question MAY need to be answered, "How much, for how long?"
"The main objective of alimony is to balance the incomes and needs of the parties in a way that would not impoverish either party" said one Court of Appeals case (Hanaway, 1995), and that doesn't mean strict mathematical balance, but it does mean that, in appropriate cases, the parties' respective incomes will be brought more into line with each other, taking into account (always) the nine factors recited above. Those nine factors (eight, really, since the ninth one is "all other circumstances") add up to a few generalizations which might be helpful to your understanding of alimony:
The longer the marriage, the greater likelihood of alimony, and in larger amounts, for a longer time. You would think that this is self-evident, but it is not. I occasionally get inquiries from folks who have been married for two or three years, asking about alimony. There isn't going to be any alimony ordered at the end of a three year marriage. I also occasionally get inquiry from a husband, who intends to leave his wife of twenty five years for a cheerleader from the local college, who wants to know "If I give Wife the house, can I get out of paying alimony?" No, you can't. Not if she needs the money.
The question of alimony is separate from property division. First, the judge will divide the property of the parties, trying to be fair to each person, and then the judge will examine whether or not one party needs to have their income boosted. From the other party's income, not from the other party's assets. On one hand, an executive from a large corporation can expect (since he's making $200,000 per year) to be paying a large chunk of next year's salary as alimony, in spite of the fact that Wife received half a million bucks in real estate, her half of the marital property. She won't be forced to sell her property to meet living expenses, in that situation. On the other hand, assume a General Motors retiree, same age as the first example, same number of years married. The judge will divide up the property, and we already know that the GM pension gets divided up as marital property, so Wife is going to get her pro-rata share of it. This fellow has no left over income to divide, does he? The available income ($1200 a month, from GM) is in the pension, and now each of them is getting six hundred dollars a month, separately, and no additional alimony will be awarded. Looking at the factors, there is no ability to pay, and Wife has no need: she's getting the same monthly income that the retired Husband is getting.
So here's another generalization: Rich people pay more, and get more, alimony than poor people do. This should also be obvious. It's the "ability to pay" factor, isn't it?
There is another truism regarding alimony that you should be aware of: alimony is disappearing. It's fading fast. Judges are less and less likely to award alimony, or to continue it for as long as was true in the past. This is, for the most part, just a reflection on our changing society, and the role of women, for it was typically true that it was the wife who was getting the alimony. In the old days, when women didn't work, the need for alimony was greater. Today, women are expected to go get a job, especially if there are no children, or if the children are grown, and out of the home. A woman, in the old days, might receive permanent alimony, which meant that she had the income until she died or remarried, but that award is quite rare now. It's still available, if Wife can show that she's not employable, or marginally so, and can show that she's never, or hardly ever, worked, during the thirty years of marriage, and she may even have health problems. But a woman getting divorced today, even in her forties, will be far more likely to receive rehabilitative alimony, which is to say, alimony for a shorter period of time, maybe the three years it takes for her to finish her degree, and maybe a year or two longer, to help her get on her feet, but after that, no alimony. Four or five years is all you get, good luck with the new job, dear.
Alimony in gross is alimony that is fixed in amount. It may be fixed in duration (one hundred dollars a week for two years) or it may be fixed in dollar amount (one hundred dollars a week until the sum of five thousand dollars is paid). This can be attractive because generally, alimony is deductible from income for tax purposes, if you're paying the alimony, and conversely, alimony is taxable income to the recipient. This is not true of monies paid for property settlement. Occasionally, parties that are, say, ten thousand dollars apart but looking to settle, may not be that far apart if the payor gets to deduct that ten thousand, when it's paid, for tax purposes. Your lawyer will know when alimony, and what kind of alimony, is deductible, so be sure to ask.
Good luck with it.