Understanding Alimony and Spousal Support in Washington
Alimony is the commonly known term for what is generally referred to in Washington as maintenance or spousal support. Under any name, it is money paid by one divorced spouse, generally out of their income, to the other to supplement their income. Talk to a Seattle alimony attorney at Seattle Divorce Services if you have specific questions or concerns.
Spousal Support Separate From Child Support Payments
Spousal support is separate from child support, but may be impacted by child support. A “chicken or egg” quandary when looking at the incomes of the parties is whether to calculate alimony first and then calculate child support based on the adjusted incomes, or to calculate child support first and then calculate alimony based on the relative incomes after child support obligations. Your Seattle alimony attorney can discuss this choice with you. Note that child support is NOT income to the parent receiving it, because it is intended for the benefit of the children and not the receiving spouse.
Factors In Awarding Spousal Maintenance
The factors for the court to consider when awarding maintenance are set forth in RCW 26.09.090. These are often generally referred to as:
- need and ability to pay
- length of marriage
- standard of living, and
- time needed to acquire suitable employment.
Our Seattle alimony law firm is often asked if the bad actions of a spouse will increase the spousal support. Note that marital fault is NOT among the standards. Thus one party having had affairs or having been abusive are not relevant to alimony issues.
There are really two aspects of spousal maintenance that a court has to decide, one is amount and the other is period of time. Some of the factors go more to amount, while others go more to how long it should be paid.
What if I Can’t Afford to Pay Alimony?
Need and ability to pay looks both at what need the lower income spouse has, and what ability to pay alimony the higher income spouse has. Need is a flexible standard that might look as well at the living standard of the parties during the marriage. Thus “need” might be higher for a wealthier couple and lower for a poorer couple. On the other hand, if the higher earning spouse also does not make very much, then the there might not be enough to go around and so no or little alimony ordered despite the need for it. Because both need and ability to pay are difficult to quantify, you should discuss your specific circumstances with a Seattle alimony attorney.
Length Of Marriage Affecting Period of Spousal Maintenance
In terms of how long the spousal maintenance should be paid, there was an article written many years ago by Judge Robert Winsor (now deceased) that laid out three categories of marriages for purposes of spousal maintenance:
- Short term marriages (up to 5 years)
- Medium length marriages (5-25 years)
- Long marriages (over 25 years)
Judge Winsor’s article has been a major influence on judicial thinking about the length of time spousal support should be paid. Your Seattle alimony attorney can tell you more about Judge Winsor’s analysis.
In general, in short term marriages the financial circumstances of the parties are thought to not be greatly affected by the marriage. Both parties generally have whatever money making abilities they came into the marriage with. Thus in short term marriages, spousal maintenance would generally be of short duration, i.e. just long enough to allow a non-working spouse to find work.
On the other hand, in a long term marriage it was felt that the financial circumstances of the parties were largely dependent on the joint decisions made during the marriage, and that the parties would continue to be affected by those decisions for the rest of their lives. Thus spousal support in long term marriages would generally be for a long period, typically until death. Sometimes maintenance would be in a declining amount over time to allow for the less well off spouse starting to earn an income, but anticipating that their income capacity would never match the other spouse.
Medium length marriages would generally be treated as requiring a longer period of maintenance than a short term marriage, but not as long as a long term marriage. In a medium length marriage there is anticipated to be a longer working live still ahead that will allow a spouse to take more responsibility for their future economic well being. Depending on the actual length of the marriage, the analysis might slide more towards either the short or long term way of thinking about the marriage and resulting spousal support obligations.
Time Needed To Acquire Employment
As a Seattle alimony attorney, I remember when some decades ago the courts tended to focus more on what it would take to get a spouse to the point of being self supporting. This was referred to as the rehabilitative approach. The idea was to determine how much alimony, and for how long, was needed to allow a spouse to support themself while preparing to become self supporting. Under this theory, the spousal support amount might be just enough to get by, and the period may be just long enough to obtain training and find work. Interestingly, though, I have seen this line of thinking referenced in a published judicial opinion as recently as 2013.
Other Calculations Your Seattle Alimony Attorney Will Consider
However, over time Seattle alimony attorneys have seen the rehabilitative approach start to take a back seat to other methods that focused both on need and ability to pay and the overall goal of fair and equitable results. A second approach that has been used was compensatory spousal support. Under this approach, alimony would go beyond simply helping the spouse to become self-supporting and also seek to compensate a spouse for lost income potential where the spouse has played a role serving the marital community in other ways, such as managing the home while the other spouse worked. In practice this was cumbersome to quantify, and I found courts leaning more in the direction of a third approach, income equalization.
This third method of calculating spousal support stated that alimony was “a flexible tool for equalizing the living standards of the parties for an appropriate period of time.” This method tended to look less at compensating lost opportunities and more at the standard of living. Generally this simply came down to equalizing the incomes of the parties, which was much easier to calculate. To a degree, the equalization method is also a way of addressing the need and ability to pay standard. If the incomes are equalized, then need and ability to pay are equalized as well. It should also be noted that the standard used by the court for looking at incomes is how much it finds that the person can reasonably make, so choosing not to work is not helpful.
However, in more recent years, when determining spousal maintenance awards I have seen the courts often back off of full equalization, and often award less spousal support. This is probably based on the courts using a mixture of the three different approaches outlined above, considering not just what it would take to equalize incomes, but also the ability to become self supporting as well as the need or lack thereof for compensation for lost opportunities.
Alimony Vs. Property Division
Another issue to discuss with your Seattle alimony attorney is the interplay between maintenance awards and property division. Courts often divide the property and liabilities of the parties unequally. This is intended to address some of the same issues as alimony, namely the need to send both parties into the futures in as equal a position as possible. If one party has much more ability to earn a high income, or has significant separate property, then the court may award more of the community property to the disadvantaged spouse. However, to the extent that this is addressing some of the same issues as spousal support, you will often see a court awarding less spousal support where there is more property awarded, or giving less property in exchange for awarding more alimony.
Recent Tax Changes Affecting Spousal Support
One interesting change for you to review with your Seattle alimony attorney with regard to negotiating spousal maintenance is the income tax change made by the federal government in the last year. It used to be that alimony was a deduction to the payor and taxable instead to the receiving spouse. That has now been changed, and the money is now taxed to the paying spouse, presumably because they presumably have the higher income and so will be taxed at a higher rate. This can make it a bit more difficult to convince the paying spouse to pay a reasonable amount of maintenance, as they tend to feel like they are getting hit two ways.
Is it Possible to Modify Alimony?
Down the road you may need to talk to your Seattle alimony attorney about modifying alimony, whether you are paying or receiving. Maybe you lost your job, or your health has changed, or your ex-spouse’s income has changed considerably.
Spousal support is modifiable, but not easily so. Unlike child support which is expected to be modified every few years to update the calculations, spousal maintenance is expected to be fixed at the time of the divorce based on the current circumstances. In order to modify the support, either in amount or length of time it will be paid, you have to show that there has been a substantial change of circumstances from what was expected at the time of the divorce.
Moreover, a couple can agree in their divorce settlement that the spousal support is non-modifiable even if there is a substantial change of circumstances. This can be a double edged sword for both parties. While it means that the maintenance cannot be increased down the road, it also means it cannot be decreased even where it might otherwise be appropriate to do so. You should discuss with your Seattle alimony attorney whether you should have such a provision in your financial settlement.
Finally, unless the orders specify differently, maintenance is terminated upon either the remarriage or death of the receiving party. The remarriage provision is controversial, as it presumes an obligation, and ability, on the new spouse to help support the spouse who has been receiving maintenance. Often this result is avoided simply by living together without remarrying.
Call Seattle Divorce Services Today To Discuss Alimony or Spousal Support with An Experienced Seattle Alimony Attorney
If you are concerned about alimony, discuss your spousal support issues with a Seattle alimony attorney. To schedule an appointment, we can be reached through the contact form, or you can call us at 206-784-3049.