SPOUSAL SUPPORT OVERVIEW

§ 11.03 Determining the Amount of SPOUSAL Support




The court’s authority to award spousal support to either party in a divorce action is established by MCL 552.23(1).

Upon entry of a judgment of divorce or separate maintenance, if the estate and effects awarded to either party are insufficient for the suitable support and maintenance of either party and any children of the marriage who are committed to the care and custody of either party, the court may also award to either party the part of the real and personal estate of either party and spousal support out of the real and personal estate, to be paid to either party in gross or otherwise as the court considers just and reasonable, after considering the ability of either party to pay and the character and situation of the parties, and all the other circumstances of the case.[2]

In other words, when the property award is insufficient to provide for the suitable support of a party and any children committed to his or her care, a court may award spousal support to that party after considering all the circumstances of that particular case. [2]



EXAMPLES OF HOW JUDGES MAKE A DECISION

[s]ome judges have used the following approach in determining the amount of spousal support:

Determine each party’s weekly net income. If the Friend of the Court recommendation is not available, put the burden on the attorneys and the parties to bring in the needed information.

Deduct from a party’s income the payments he or she makes to protect a marital asset (e.g., mortgage payments).

Add together each party’s adjusted income, divide by half, and award spousal support to the party whose adjusted income does not meet half of the sum.

Example: The adjusted weekly income of Spouse #1 is $500; the adjusted income of Spouse #2 is $100. The total income of both parties is $600. One-half of $600 is $300, which is the amount that should be available to each party. To reach that $300 goal, Spouse #2, who has only $100 of available income, would receive spousal support of $200 from Spouse #1. [2]





[1] Spousal Support

GENERAL REVIEW, MICHIGAN ONLY WHEN CITED



MICHIGAN

This is a summary of major principles only, with cross-references to more detailed discussion in sections of the Benchbook. [2]

Factors in awarding spousal support. §6.1, §§6.4–6.17.

The court may award spousal support as is just and reasonable if the property award is insufficient for the suitable support of either party and any children of the marriage of whom the party has custody. The court must consider “the ability of either party to pay and the character and situation of the parties, and all the other circumstances of the case.” MCL 552.23(1).[2]



Factors to be considered include the following:

Past relations and conduct of the parties. How the parties conducted the marriage as well as fault in the breakdown of the marriage. Fault is only one factor and should not be assigned disproportionate weight.

Length of the marriage. A long-term marriage is especially relevant where one spouse has no career or marketable skills and his or her standard of living may be reduced because of the divorce.



HERE §6.6 A long-term marriage is particularly relevant where a spouse has no career or marketable skills and will likely be reduced to a lower standard of living as a result of the divorce. Johnson v Johnson, 346 Mich 418, 78 NW2d 216 (1956) (20-year marriage; husband at fault; permanent spousal support appropriate). For example, the length of the marriage was determinative in the following circumstances:

A 30-year marriage: the wife did not have enough credits to qualify for Social Security and was unlikely to acquire sufficient retirement benefits or to find employment with sufficient income given her late start in the workforce. Magee v Magee, 218 Mich App 158, 553 NW2d 363 (1996).

A 23-year marriage: the husband was at fault and the wife’s health and future were precarious. Demman v Demman, 195 Mich App 109, 489 NW2d 161 (1992).

A 24-year marriage: the wife spent most of her adult life in the traditional mother/homemaker role and her employment prospects were uncertain. McNamara v McNamara, 178 Mich App 382, 443 NW2d 511 (1989).

A 27-year marriage: the husband and wife agreed that she would take herself out of the job market to become the homemaker. Zecchin v Zecchin, 149 Mich App 723, 386 NW2d 652 (1986).

While the length of the marriage is a proper consideration in determining whether spousal support should be awarded, the length of the couple’s relationship is not. Korth v Korth, 256 Mich App 286, 662 NW2d 111 (2003). [2]



Ability of the parties to work. HERE Physical or mental inability to work. In Sullivan v Sullivan, 175 Mich App 508, 438 NW2d 309 (1989), where there were serious doubts whether the wife, who suffered from schizophrenia, would ever be fully able to support herself, a temporary award of spousal support was inequitable. However, in Lesko v Lesko, 184 Mich App 395, 457 NW2d 695 (1990), where there was no evidence that defendant’s health affected her ability to work, the spousal support award was found to be excessive.[2]



Source of and amount of property awarded to the parties. The focus is on the income-earning potential of the assets rather than their value; a spouse is not required to dissipate property awarded to meet daily needs where spousal support can be available. HERE The focus for this factor is the income-earning potential of the assets, rather than their value, especially when both parties have substantial assets and there is a significant disparity in income. Gates v Gates, 256 Mich App 420, 664 NW2d 231 (2003); Hanaway v Hanaway, 208 Mich App 278, 527 NW2d 792 (1995). The objective is to balance the incomes and needs of the parties in a way that will not impoverish either one. Magee v Magee, 218 Mich App 158, 553 NW2d 363 (1996). That the assets awarded to the spouse seeking spousal support produce no income is a relevant consideration. Id. A spouse is not required to dissipate the property awarded to meet daily needs where spousal support can be available. Gates; Hanaway; see also Zecchin v Zecchin, 149 Mich App 723, 386 NW2d 652 (1986) (spouse should not be required to liquidate her share of property settlement to survive while husband could support himself without dipping into his share of property settlement).

An award of spousal support is appropriate when only a small fraction of a party’s property award is liquid or capable of income generation. Olson v Olson, 256 Mich App 619, 671 NW2d 64 (2003). If the parties have unequal income, and unequal income potential, it may be inequitable to require a party to consume his or her capital for support. Id.

In finding the wife’s spousal support award inequitable, the court in Maake v Maake, 200 Mich App 184, 503 NW2d 664 (1993), found that the facts that the husband received the home mortgage-free and had his own business, which permitted him to take deductions for certain personal expenses, were relevant. See also Moser v Moser, 184 Mich App 111, 457 NW2d 70 (1990) (where wife retained $20,000 of her own savings and husband was awarded custody of children, award of $65 per week in spousal support plus periodic payment of $110 per week as alimony in gross for 61/2 years was equitable). [2]



Ages of the parties. HERE An older couple’s divorce after a long marriage generally results in an award of permanent, rather than temporary or rehabilitative, spousal support, unless the estate is large.

A 58-year-old wife and a 30-year marriage: the spousal support award ($2,400/month for two years and $250/year thereafter) was not “even remotely just and reasonable” given the disparity in incomes and that it was unlikely that the wife could find employment sufficient to maintain even a modest lifestyle. Magee v Magee, 218 Mich App 158, 164, 553 NW2d 363 (1996).

A 30-year marriage: although the trial court intended to encourage the wife to work full-time, that objective is not always possible for people in their fifties, male or female; two years of rehabilitative spousal support was inequitable. Wiley v Wiley, 214 Mich App 614, 543 NW2d 64 (1995).

A 47-year-old wife and a 23-year marriage: the spousal support award was upheld where the husband was at fault and the wife had little earning power and was in poor health. Demman v Demman, 195 Mich App 109, 489 NW2d 161 (1992).

A 60-year-old husband, a 47-year-old wife, and a 10-year marriage: an award to the wife of $420 per month for 15 years was inequitable considering, among other factors, the relative ages of the parties, where the husband was retired and the wife was able to work. Korth v Korth, 256 Mich App 286, 662 NW2d 111 (2003).[2]



Ability of the parties to pay spousal support. Sources considered in determining the ability to pay include earnings, pension plans, unemployment compensation, tax refunds, and Social Security benefits. Ability to pay includes the payer spouse’s unexercised ability to earn if income is voluntarily reduced to avoid paying spousal support. Factors relevant to the ability to pay include (1) the parties’ employment histories, (2) reasons for any termination of employment, (3) work opportunities available, (4) diligence in trying to find employment, and (5) availability of employment.HERE Income is broadly interpreted and is not limited to taxable income. MCL 552.602(m) defines income to include sources such as earnings, pension plans, unemployment compensation, tax refunds, and Social Security benefits. A husband’s disability payments, from disability insurance he purchased after the divorce, were the current equivalent of income derived from employment and could be used to make spousal support payments. Ackerman v Ackerman, 197 Mich App 300, 495 NW2d 173 (1992); Torakis v Torakis, 194 Mich App 201, 486 NW2d 107 (1992).

This factor is reflected, in part, in the court’s consideration of the disparity in incomes. Korth v Korth, 256 Mich App 286, 662 NW2d 111 (2003) (husband’s retirement and fixed income balanced against wife’s younger age and ability to work); Torakis (husband’s assets and ability to meet spousal support obligation balanced against wife being unable to work and having depleted her savings).

Spousal support is not a matter of simply assigning some set fraction of the spouse’s assets; the financial situation of the parties and the money needed for support must be considered. Bialy v Bialy, 167 Mich 559, 133 NW 496 (1911). [2]



Present situation of the parties.HERE The ability to pay spousal support includes the payer spouse’s unexercised ability to earn if income is voluntarily reduced to avoid paying spousal support. Knowles v Knowles, 185 Mich App 497, 462 NW2d 777 (1990). The interest is in protecting the dependent spouse from impoverishment as a result of the other spouse’s spite or avoidance of responsibility. Healy v Healy, 175 Mich App 187, 437 NW2d 355 (1989). While the court should not unduly interfere with personal lives and career choices, it does have to protect the spouse who is dependent on the other for support, especially where there was a traditional breadwinner-homemaker household. Id. Healy relied on a child support case, Rohloff v Rohloff, 161 Mich App 766, 771, 411 NW2d 484 (1987), that also provided criteria for determining the “ability to pay.” The criteria include

the parties’ employment histories,

reasons for any termination of employment,

work opportunities available,

diligence in trying to find employment, and

the availability of employment.

In some cases, it may be appropriate to consider whether a payee has voluntarily reduced his or her income in determining the proper amount of spousal support. For example, if the payee elects not to receive pension benefits, it is appropriate to consider whether the income may be imputed in determining the amount of spousal support. If immediate withdrawal of pension benefits would not reduce the pension, the income should be imputed to the payee. However, if the payee would receive a reduced benefit by immediate withdrawal, the income should not be imputed. Moore v Moore, 242 Mich App 652, 619 NW2d 723 (2000). [2]



Needs of the parties.In general, cases cited for this factor consider the combined effect of individual factors on the present ability of one spouse to pay and on the present or anticipated needs of the spouse seeking spousal support. See Magee v Magee, 218 Mich App 158, 553 NW2d 363 (1996), where the relevant factors were the wife’s bleak employment and retirement prospects, the husband’s work history and pension, and the meager marital estate. See also Torakis v Torakis, 194 Mich App 201, 486 NW2d 107 (1992), where the wife was awarded spousal support 13 years after the original judgment, based on a clause reserving spousal support. In Torakis, the wife was in poor health, was unable to work, and had depleted her savings; the husband had extensive property holdings and pensions. [2]



Health of the parties. The parties’ health is relevant to the ability to work and to the personal needs of the spouse seeking support.

Prior standard of living of the parties.HERE The parties’ station in life and standard of living establish a qualitative basis for determining the extent of the support duty. Johnson v Johnson, 346 Mich 418, 78 NW2d 216 (1956) (wife’s right to support at level commensurate with that which she would have enjoyed had marriage survived). The proper support of a spouse includes maintaining his or her accustomed station in life, commensurate with the other spouse’s ability to provide spousal support and child support for any dependent children. Tomlinson v Tomlinson, 338 Mich 274, 281, 61 NW2d 102 (1953); see also Demman v Demman, 195 Mich App 109, 489 NW2d 161 (1992) (spousal support needed to ensure maintenance of wife’s prior standard of living).

Temporary spousal support of $200 per week for one year was appropriate in Voukatidis v Voukatidis, 195 Mich App 338, 489 NW2d 512 (1992), considering the standard of living the parties had established with their combined incomes and as a means of allowing the wife a chance to get on her feet financially. [2]



Whether either party is responsible for the support of others.

General principles of equity.

The court must make findings on each factor relevant to the claim before it.

Amount and duration of spousal support. §§6.18–6.20. [2]

Factors relevant to the amount of support.

duration of the marriage

the parties’ contribution to the joint estate

the parties’ ages

the parties’ health

the parties’ stations in life

the parties’ necessities and circumstances

the parties’ earning abilities[2]

Rehabilitative spousal support.

Rehabilitative spousal support is temporary spousal support to help the dependent spouse make the transition to self-support. It can be appropriate to

encourage a spouse to seek full-time employment and self-sufficiency

allow a spouse to complete an advanced degree or obtain a marketable skill when he or she had worked while the other spouse obtained a degree

allow a spouse to adjust to a lifestyle not based on combined incomes

allow a spouse to obtain new job skills and enter the workforce[2]

Permanent spousal support (generally until death or remarriage).

It has been found appropriate when there is

a long-term marriage with a spouse who has no career or marketable skills

a long-term marriage, one spouse with superior earning skills, and the other spouse with questionable earning capacity

great discrepancy between incomes and a wife who devoted most of her adult life to homemaker role

serious doubt that a spouse could support himself or herself because of a disability[2]

Permanent spousal support. Where there is a disparity in earning abilities, the Washtenaw County guidelines would generally award permanent spousal support if there is

a marriage of 30 or more years,

a recipient 60 years old or older,

a recipient who earns little or no income, and

a recipient who has less than a high school education.[2]

No spousal support. Spousal support in any amount or duration is not recommended by the Washtenaw County guidelines when there is

a marriage of 4 or fewer years,

a proposed recipient 30 years old or younger,

a proposed recipient who earns a substantial income, and

a proposed recipient who has a doctorate degree.[2]






ABILITY TO PAY IS THE CORE DECISION


The relative economic circumstances of the parties and the ability to pay maintenance are the primary considerations when setting interim spousal support.[1]



NEED VS ABILITY TO PAY



In balancing need versus the ability to pay, any matter deemed relevant will be considered by the court. In a number of jurisdictions, statutes, often modeled after the Uniform Marriage and Divorce Act, specify factors that should or must be considered when awarding maintenance.[1]



//UNIFORM MARRIAGE AND DIVORCE ACT



IS FAULT CONSIDERED IN SPOUSAL SUPPORT?

The practitioner also must be familiar the jurisdiction's law concerning the role of fault in determining spousal support. In a number of states, fault is a statutory factor to be considered when awarding alimony. 1



BAD ACTS AFTER SEPARATION?



Additionally, obstinate or uncooperative post-separation conduct by one of the parties may be considered. 2 One New York court, for example, in setting the amount of support pendente lite, expressly considered the possibility that the hostile payor spouse might abruptly stop making support payments. 3 In some instances, however, action that would normally be construed as "fault" may be excused when involuntarily induced, such as by a demonstrated mental illness. 4[1]



CHECKLIST

The factors enumerated in statutes and in case law pertaining to support provide the courts and practitioners with a good "checklist." Many of these factors, however, are more germane to permanent, rather than temporary, award determinations.



COURTS CANNOT USE ALL THE FACTORS IN TEMP ORDER?



Moreover, in light of the meager information available at the temporary hearing, and because the purposes of a temporary award differ from those of permanent maintenance, courts often cannot meaningfully consider all the factors set forth in such statutes. 5[1]



CALIFORNIA USES COMPUTER PROGRAM, PROGNOSTICATOR?

In California, where courts typically employ a computer program specifically devised for setting the amount of temporary support, the Fourth District Court of Appeals explained



PURPOSE OF THE TMEPORARY ORDER IS TO MAINTAIN THE STATUS QUO?





The purpose of temporary spousal support is to maintain the status quo as much as possible pending trial. By contrast, permanent spousal support is supposed to reflect a complex variety of factors established by the state and legislatively committed to the trial judge's discretion, including several factors which tend to favor reduced support, such as the "goal" that the supported spouse should become self-sufficient within a reasonable period of time.[1]

Furthermore, not only are the legal bases for the two kinds of support different, there is also a disparity in practice. Because dissolution of marriage is, in a mathematical sense, a negative-sum game where each party will not have the same access to the whole of the marital property he or she had during marriage, permanent support orders will usually be lower than temporary orders.[1]

#"In re Marriage of Schulze, 60 Cal. App. 4th 519 (1997) (citations omitted). [1]



COURTS SHOULD HAVE BROAD DESCRETION IN A TEMPORARY SPOUSAL SUPPORT ORDER



During the pendency of the case, a party may request a temporary or interim order. MCL 552.13. The request is made by filing a verified motion. Notice and a hearing are required, and the order must state its effective date and whether its provisions may be modified retroactively by a subsequent order. MCR 3.207(C). [2]




The distinctive nature of temporary support, accordingly, necessitates very broad trial court discretion in determining the level of support. 6 [1]



THE COURT SHOULD ARTICULATE WHAT IT BASED THE TEMPORARY ORDER ON.



Particularly because of this great discretion, trial courts should set forth the factors considered in reaching their determinations. 7[1]

[a] Needs of the Non-Monied Spouse [1]



SEEKING SPOUSE HAS THE BURDEN OF DEMONSTRATING NEED

The spouse seeking a maintenance award has the burden of demonstrating the need for support. If a spouse cannot make an adequate showing of need, support will be denied. 8"[1]



NEED INCLUDES MAINTENANCE OF LIFE STYLE



Needs," however, does not comprise only basic necessities such as food and shelter, but includes the ability to maintain an appropriate lifestyle.[1]



SUBSISTANCE LEVEL WRONG



Accordingly, it can be error for a court to fix a temporary maintenance award at a level which merely allows the spouse to "subsist" pending trial. 9[1]


WHAT IS A LIFE STYLE


[i] Lifestyle or "Standard of Living." A threshold question is, what is the "lifestyle" that should be maintained? Typically, the goal is to maintain the standard of living enjoyed by the parties during the marriage. 10 [1]



LIVE IN THE ACCUSTOMED MANNER



Phrased another way, the court will look to the parties' accustomed marital lifestyle, with the award assuring the non-monied spouse substantially the same living conditions to which he or she has been accustomed. Even in Texas, a community property state where, until recently, the award of permanent alimony was not authorized, courts have held that the goal of temporary support is to provide a lifestyle similar to that enjoyed while married, provided the budget can maintain that standard of living. 11[1]



WHAT IF THE LIFE STYLE HAS CHANGED RECENTLY AND DRAMATICALY?

It is often the case, however, that the parties' lifestyle at the time of the temporary hearing has changed dramatically since the happier days of the marriage. The court is then faced with the problem of determining what "lifestyle" should be maintained. [1]



WHAT IF THE PARTIES HAVE BEEN SEPARATED



If the parties have been separated an extended period of time, the court probably will look to the lifestyle of the parties at the time of the pendente lite hearing rather than the lifestyle at a previous time. 12 The judge, however, may well consider the reasons that an extended period of time passed before the case came to court.[1]



LITIGATE THE STANDARD OF LIVING

Litigation on the issue of temporary support often centers around establishing the parties' standard of living and demonstrating the "need" for a specified amount of money to support that lifestyle.[1]



WHAT IF THE PRIOIR STANDARD WAS HIGH?



The fact that the standard of living is high will not, in itself, limit the level of temporary support. When reviewing the temporary support orders entered for a relatively wealthy family, one judge declared that "the critical factor in determining standard of living is clearly the financial circumstances of the obligee, not his philosophical position on the precise limits of the good life--what he can afford is the question, not what he is willing to pay for." 13[1]


WHAT IF WIFE HAS NO INCOME AND MUST USE ASSETS OF MARRIAGE?


An award of temporary alimony was appropriate where a former wife had no income of her own and was forced to invade her capital assets to support herself and the parties' children of whom she was the custodial parent.[1]



NEED (PRIOR STANDARD) AND ABILITY TO PAY



A payee spouse's needs, established by the parties' standard of living during the marriage as well as by the payor spouse's ability to pay, determine the appropriateness of an award of temporary spousal support. 13.1[1]



EXAMPLE MODERATE STANDARD OF LIVING

An award of $500 monthly in interim spousal support was not an abuse of discretion where an award of interim support is based solely on the payee spouse's need, the payor spouse's ability to pay, and the standard of living enjoyed during the parties' marriage. That the parties' standard of living had been poor during their marriage was no ground to negate the duty of interim spousal support where the husband had multiple rental properties from which he received income, where, monthly, his income exceeded his living expenses by approximately $1,000, and where the wife was unemployed at the time of the filing of her petition for interim support. 13.2[1]



EXAMPLE HIGH STANDARD OF LIVING

An award of temporary spousal support of $5,000 per month for seven years was not an abuse of discretion where the financial condition of the parties, the nature and value of their respective property, the contribution of each to marital property held by them, the duration of the marriage, the earning capacity, health and age of each party, the wife's post-divorce needs, and the parties' station in life during the marriage were all considered. 13.3[1]



SPOUSE ASSUMED TO SEEK EMPLOYMENT

[ii] Education and Training for Non-Monied Spouse. An award of temporary maintenance is based on the assumption that the party receiving the award should strive to obtain suitable employment. 14 Thus, although a non-monied spouse's return to the workforce is a matter typically of greater concern at the final hearing, rehabilitation may also be an issue when fixing interim support.[1]



SPOUSE RETURNES TO SCHOOL



A Pennsylvania court, for example, awarded pendente lite alimony which, in effect, provided the wife with an opportunity to rehabilitate herself by completing a nursing degree, despite the fact that she had prior training as a phlebotomist. 15 A request for educational or training expenses, however, must be reasonable. In appealing a modification of alimony pendente lite to the husband, the wife argued, and the Maryland appeals court agreed, that it was improper for the trial court to include in the determination an annual education expense predicated on a projected six-year course of graduate study. 16[1]



WHAT IF SPOUSE HAS INDEPENDENT RESOURCES

[iii] Resources of the Spouse Seeking Support. Evidence that the spouse seeking support has independent resources adequate to maintain his or her lifestyle can demonstrate the absence of a need for maintenance. 17 Furthermore, at least one appellate court has held that once the trial court determines that a party seeking temporary alimony has adequate resources and does not need spousal support, it is not required to consider additional factors raised by the spouse requesting the temporary award. 18[1]



MARITAL ASSETS NOT REQUIRED TO BE DISSAPTIED

A dependent spouse, however, is not required to deplete his or her resources before being entitled to pendente lite support. 19 To do so would contravene the goal of maintaining the status quo. [1]



LOOK AT INCOME DERIVED FROM PROPERTY



A court, accordingly, may decide to take account of a party's wealth by considering the income derived from, rather than the value of, that party's assets. 20 If an employed spouse argues that a support request should be denied because the opposing spouse has purposely become impoverished, a court will look to all relevant circumstances that affect employment and employability, such as age, education, health and work experience. 21[1]


EXAMPLE OF $5,000 PER MONTH


An award of temporary spousal support of $5,000 per month for seven years was not an abuse of discretion where the financial condition of the parties, the nature and value of their respective property, the contribution of each to marital property held by them, the duration of the marriage, the earning capacity, health and age of each party, the wife's post-divorce needs, and the parties' station in life during the marriage were all considered. 21.1[1]



EXAMPLE WHERE NO SUPPORT

A spouse resisting court-ordered alimony pendente lite might succeed in convincing the court there exists no "need" where provision already has been made for support. For example, a New York court declined to order alimony pendente lite to the wife because the husband had continued to provide support to the wife and children, the wife and children had maintained the same lifestyle enjoyed before the divorce action was filed, and the wife had a reasonable fortune of her own. 22[1]

[b] Ability of Monied Spouse to Pay[1]

An initial overriding consideration is the financial ability of the prospective payor to meet the demands of any award. Not only must the award be within the individual's ability to pay, but it must also leave that individual the means to maintain his own health and well-being by obtaining proper food, shelter and clothing, and it must not burden him to the extent his incentive to pay is destroyed. 23[1]

[i] Determining Income. The income of the prospective payor spouse is typically the basis for determining her or his ability to make support payments. Where there is conflicting evidence concerning a prospective payor's financial situation and his or her ability to pay, it is within the trial court's discretion to make credibility judgments in awarding temporary support. 24[1]



WHAT DOES THE COURT LOOK AT?

Virtually all receipts received on a regular basis may be considered by the court in assessing the ability to pay. Courts have considered such income as regular overtime pay, 25 bonuses, 26 social security, 27 and even veteran's disability benefits. 28 Retirement plan contributions and accruals have also been considered as additional income available for temporary spousal support. 29[1]


SECOND JOB?


Income from a party's "second" job may, or may not, be considered. Courts are generally willing to include or impute income from a secondary job or income source where the spouse seeking support can demonstrate that the second income has been earned on a recurrent or steady basis. In Cochran v. Cochran, 30 a Virginia court considered what the husband, a teacher, could have reasonably been expected to earn during the two months of the year when he was not employed as a teacher where the husband had a history, throughout the marriage, of earning substantial sums during those two months and after normal school hours. In Erler v. Erler, 31 the husband had two part-time jobs and both were considered by a Minnesota court because they had been a steady source of income for approximately ten years. In Mintle v. Mintle, 32 the Wyoming Supreme Court determined that there was no abuse of discretion for the trial court's consideration of income from part-time employment as a landscaper during the summer and as a seller firewood in the winter.[1]


MOON LIGHTING


Courts have been less willing to consider sporadic moonlighting or impute secondary income based only on a spouse's ability to take a second job. For example, in Mitzenmacher v. Mitzenmacher, 33 the wife argued that additional income should be imputed because, during the better times of the marriage, the husband had demonstrated his ability to supplement his income by moonlighting on the weekends and evenings as a computer repairman. The wife's argument was rejected by the Florida court because there was no evidence that the second job was anything other than occasional or sporadic during certain periods of the marriage. Likewise, sporadic loans from relatives that supported much of the families activities should not be considered reliable income when evaluating a family's standard of living. 34[1]


IRS DECLARED INCOME


If the entire compensation of the proposed payor comprises earnings reported to the Internal Revenue Service, or is otherwise easy to verify, calculation of an "income" figure is relatively straightforward. On the other hand, where earnings are difficult to establish or can be manipulated, the extent of a spouse's ability to pay can be extremely difficult to ascertain. A common and recurring problem is determining the disposable income of a small business owner.[1]


ABILITY TO PAY BASED ON PAST CONDUCT


The ability to pay may be inferred from the prospective payor's conduct and circumstances. Where the evidence shows that one party has recently engaged in extravagant spending, a judge may reasonable infer sufficient ability to pay child support and maintenance. 35 [1]



Often, the lifestyle exhibited by the parties prior to their marital troubles will confirm the ability to pay, as often does the monied party's lifestyle after separation as exhibited by such things as credit charges, housing arrangements and travel. A judge will look with suspicion on claims that the monied spouse's financial situation took began a dramatic downward spiral after the time of separation.[1]



CALIFORNIA EXAMPLE

A California appellate court held that the trial court acted properly in ordering the husband to pay $35,000 in temporary spousal support even though the husband insisted, and attempted to prove, that he had no salary and no direct control over his sizable estate. 36 The evidence indicated that the husband, however, still exercised a great degree of control over many of his assets. In ordering the award, the court declared that a spouse who was able to maintain an affluent marital lifestyle cannot secrete assets, put assets and income beyond his or her immediate control, or rest on the fact that he or she has no salary income in order to avoid paying pendente lite support at a level that will maintain the marital lifestyle status quo pending trial. 37[1]


REPORTABLE INCOME MANIPULATED


As means of getting a good picture of a party's income, the court might examine the family's historical finances over a period of years. In a divorce action where the evidence indicated that the husband and the husband's father had manipulated the husband's reportable income to show a drastic reduction in salary, the court averaged the income for the previous three years in determining his available income for maintenance and child support. 38[1]

[ii] Unemployment and Underemployment. A recurring problem is the spouse who decides to become unemployed, or takes a low-paying job, in anticipation of divorce or after the divorce action is filed. The court, to say nothing of non-monied spouse, will frown on a monied spouse's purposeful attempt to lower his or her income as a means of avoiding or reducing support payments. Under such circumstances, potential income may be considered and imputed to a party based on what could have been earned by the use of best efforts to gain employment suitable to his or her capabilities. 39[1]



PREVIOUS INCOME CAN BE USED

Even if there is a legitimate reason for the decreased income, the older, higher wage may be considered in the court's calculus, even if it is not determinative. For example, where a husband quit his job, returned to school, and took a low pay job, the trial court took into account both his current wage of $6.90 an hour plus part time teaching, as well as his $2,400 per month average salary during the last three years of the his employment. 40 In determining child and spousal support, the court imputed the husband's income at $2,000 per month.[1]

[c] Tax Considerations

Income tax implications are often overlooked when setting the amount of alimony pendente lite. 41 If the parties will be filing a joint return for the year, support payments will be nontaxable. However, if the parties will not be filing jointly, spousal support payments can be claimed as a deduction by the payor and will constitute taxable income to the spouse receiving the payments unless specifically designated as nontaxable and nondeductible. 42 As a consequence, unless the parties and the court take into account which spouse will shoulder the tax consequences of court-ordered pendente lite spousal support, the actual costs and benefits of the award may differ from those intended.[1]

In situations where all temporary support will occur in a single tax year, and it appears that individual returns will be filed, the net, post-tax amount received by the dependent spouse can be estimated and the support level based upon this amount. On the other hand, when in all likelihood temporary support will be paid during more than one year, an order specifically tailored to the circumstances might be appropriate. For instance, when court-ordered temporary support is sought late in the year, the court could order support at a level lower in the initial year (when the spouses will file jointly and there will be no tax implications) than in the following year (where the receiving spouse will bear the income tax burden and the payor spouse can deduct the support payments).[1]

Longer-term tax implications of interim support, although not germane to the court's determination of the pendente lite support level, may be worthy of consideration by counsel. Internal Revenue Service regulations provide that a year in which payments are made pursuant to a temporary support order do not count as the "first post-separation year" for the purpose of measuring recapture unless the payments are made in the same year that the divorce decree was entered. 43[1]

[d] Temporary Maintenance Factors Checklist[1]

1. Age of each party.[1]

2. Health and physical ability of each party.[1]

3. Current work status of each party.[1]

4. Educational level of applicant[1]

5. Job training experience.[1]

6. Employment history.[1]

7. Any agreements of the parties concerning employment of party seeking support.[1]

8. Efforts to find employment that party seeking support has made prior to coming to court.[1]

9. Attitude toward employment.[1]

10. Employment availability within a reasonable distance of applicant's residence.[1]

11. Transportation available to both seek employment and commute to job.[1]

12. Educational/training programs available for applicant's enrollment.[1]

13. Housing, including location in relationship to employment availability.[1]

14. Bills to be paid, including: house note/rent, gas, water, electricity, telephone, cable/satellite, home maintenance (including lawn and/or pool care), transportation costs (including car note, gas, maintenance, insurance, public transportation), food, laundry, health care (including insurance, co-pays, medicines, dental, eye care including glasses of contacts), credit card debts, clothing (including shoes coats, proper work clothing).[1]

15. Gifts and entertainment.[1]

16. Other income available to pay expenses and bills.[1]

17. Wasting of marital assets that would have been available for payment of bills and expenses.[1]

18. Applicant's future plan to take responsibility for self and expenses.[1]

19. Grounds for separation.[1]

20. Any other factor that would contribute to maintaining the status quo during the period of separation.[1]





[1]

2-11 Family Law and Practice § 11.03 ,Family Law and Practice,Copyright 2010, Matthew Bender & Company, Inc., a member of the LexisNexis Group.,
CHAPTER 11 TEMPORARY SUPPORT *,2-11 Family Law and Practice § 11.03

Numbered footnotes not bracketed are from here



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With CAP headlines comments of Terry Bankert
http://attorneybankert.com/



[2]

Michigan Family Law Benchbook ch 6 (ICLE 2d ed 2006), at http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2006553550&chapter=06 (last updated 11/12/2010)

GEORGE LOPEZ TO PAY SPOUSAL SUPPORT FLINT DIVORCE LAWYER REVIEWS SPOUSAL SUPPORT AWARD FROM KALAMAZOO

Here a Flint Michigan Divorce Lawyer  notes the  rights of a celebrity wife to financial support which are similar to a Michigan spouse and using that law. “Ann Lopez, wife of comedian and "Lopez Tonight" host George Lopez, officially filed for divorce Tuesday in Los Angeles, making good on the couple's Sept. 27 announcement of a mutual decision to split up.”[1]“She is requesting spousal support, as well as primary custody of Mayan, reports TMZ.com. “[2]Flint Spousal Support Attorney Terry Bankert 810-235-1970 reviews Michigan Spousal support. (SEO) link to this article.
http://bankertspousalsupport.blogspot.com/2010/11/george-lopez-to-pay-spousal-support.html

Issues: reviewed by Flint Divorce lawyer ;

1.Divorce; Michigan is a no  fault divorce State.

2.Calculation of a spousal support award; Moore v. Moore; Berger v. Berger; Korth v. Korth; Olson v. Olson;

THE MICHIGAN COURT OF APPEALS WAS EXTREMLEY CRITICAL OF THE KALAMAZOO COURTS SPOUSAL SUPPORT DECISION.

First, parties to a divorce action “are entitled to individual consideration based on the law and facts applicable to their case, not on anecdotal experiences of the trial court.” Cf. Brausch v Brausch, 283 Mich App 339, 354; 770 NW2d 77 (2009). [3]

3.MCL 552.23;

WHAT ARE SPOUSAL SUPPORT DECISIONS BASED UPON?

A trial court has discretion to award spousal support under MCL 552.23. Korth v Korth,
256 Mich App 286, 288; 662 NW2d 111 (2003). The primary purpose of spousal support is to “balance the incomes and needs of the parties in a way that will not impoverish either party” based on what is “just and reasonable under the circumstances of the case.” Moore, 242 Mich App at 654. Among the factors to be considered are:

(1) the past relations and conduct of the parties,

(2) the length of the marriage,

(3)the abilities of the parties to work,

(4) the source and amount of property awarded

to the parties,

(5) the parties’ ages,

(6) the abilities of the parties to pay alimony,

(7) the present situation of the parties,

(8) the needs of the parties,

(9) the parties’

health,

(10) the prior standard of living of the parties and whether either is

responsible for the support of others,

(11) contributions of the parties to the joint

estate,

(12) a party’s fault in causing the divorce,

(13) the effect of cohabitation on

a party’s financial status, and

(14) general principles of equity [Olson v Olson,

256 Mich App 619, 631; 671 NW2d 64 (2003) (citations omitted).]

4.Consideration of the parties' ages, health, abilities to work and to pay alimony, needs, and prior standard of living;

“The trial court should make specific factual findings regarding the factors that are relevant to the particular case.” Korth, 256 Mich App at 289.[3]


Plaintiff testified that she could not work and that she suffered numbness in her extremities, blurred vision, clumsiness, confusion, lack of bladder control, chronic fatigue, drowsiness, vertigo, and depression. [3]

5.Imputing income; Brausch v. Brausch;

6.Failure to consider the costs of a party's COBRA health insurance; Voukatidis v. Voukatidis; [3]


7.Whether a trial court may disregard MCR 3.206(C)(2)(a) when considering a request for attorney fees based on need; Reed v. Reed; Stallworth v. Stallworth; Gates v. Gates; Maake v. Maake;

8.Appellate attorney fees; MCR 3.206(C)(1); Whether the trial court should have enforced the parties' alleged stipulation requiring the defendant-husband to sell a vehicle and use the proceeds to pay marital debt; MacInnes v. MacInnes; MCR 2.507(G); Kyser v. Kyser


KALAMAZOO DIVORCE COURT FAILED REVIEW BY MICHIGAN COURT OF APPEALS

Court: Michigan Court of Appeals (Published, this means it is Michigan Law today)

Case Name: Myland v. Myland ,e-Journal Number: 47425, Judge(s): K.F. Kelly, M.J. Kelly, and Borrello,No. 292868, Kalamazoo Circuit Court, LC No. 08-006024-DM


HOW DOES A COURT SET SPOUSAL SUPPORT?


The [Michigan Court of Appeals] ruled that "MCL 552.23 prohibits the use of rigid and arbitrary formulas that fail to account for the parties' unique circumstances and relative positions" [3]


THE COURT HAS TO USE THE FACTORS

[The Court reaffirmed] that a trial court awarding spousal support must consider the relevant factors,[3]

[T]he court reversed the divorce judgment and remanded the case.[3]

THE KALAMAZOO DIVORCE COURT FAILED IN ATTORNEY FEE DECISIONS


The court also held that the trial court failed to apply the proper needs based analysis in denying the plaintiff-wife's request for attorney fees based on need. [3]


JUDGES MUST CONSIDER AGE, HEALTH, ABILITY TO WORK, NEEDS AND PRIOR STANDARD OF LIVING.

Plaintiff argued on appeal, inter alia, that the trial court erred by failing to adequately consider the parties' ages, health, abilities to work and to pay alimony, their needs, and their prior standard of living. [3]


THE KALAMAZOO DIVORCE COURT MADE UP AN INCOME SHE COULD NOT EARN


She also contended that the trial court erred in imputing $7,000 in income to her and in failing to consider the costs of her COBRA health insurance. [3]


KALAMAZOO SPOUSAL SUPPORT DECISION SAID SHE COULD MAKE $7,000

The court agreed. The trial court determined that the defendant-husband's income was $62,500 per year and imputed $7,000 in income to plaintiff. [3]


KALAMAZOO SPOUSAL SUPPORT BASED ON TWO FACTORS INCOME AND LENGTH OF THE MARRAIGE

It then awarded plaintiff $13,875 of spousal support per year ($1,156 per month) after only considering the length of the parties' marriage. [3]


THE MICHIGAN COURT OF APPEALS SAID THE KALAMAZOO SPOUSAL SUPPORT COURT USED A BLUNT TOOL

In short, we cannot sanction the use of such a blunt tool in any spousal support determination and the trial court’s use of this formula here is an error of law. [3]


Given the trial court’s use and application of its formula, it is not surprising that it failed to consider the factors relevant to an award of spousal support, aside from the length of the parties’ marriage and their relative incomes. Indeed, this formula does not adequately account for the factors that were highly relevant to this proceeding, including the parties’ ages, health, abilities to work, their needs, their previous standard of living, and whether one of them would be supporting a dependant. None of these required factors were considered by the trial court in the instant proceeding.[3]


LOWER COURT USED A FORMULA NOT BASED ON LAW


The trial court "applied a mechanistic formula," multiplying defendant's income less plaintiff's imputed income by .25 (apparently using .25 based on the number of years the parties were married - 25). [3]

Finally, given the statutory mandate of MCL 552.23, we must emphasize that there is no room for the application of any rigid and arbitrary formulas in determining theappropriate amount of spousal support like the one applied in this matter and the trial court on remand must proceed accordingly.[3]



THE KALAMAZOO SPOUSAL SUPPORT DECISION DID NOT FOLLOW THE LAW



The court held that this "limited, arbitrary, and formulaic approach is without any support in the law.[3]



SPOUSAL SUPPORT DECISIONS MUST CONSIDER THE UNIQUE CIRCUMSTANCES

It totally fails to consider the unique circumstances of the parties' respective positions and fails to reach an outcome that balances the parties' needs and incomes." [3]

OTHER RELEVANT FACTORS

The trial court failed to consider several of the required factors "that were highly relevant" in this case. [3]

SPOUSE DID NOT HAVE THE ABILITY TO WORK


The court also held that the trial court clearly erred by imputing an income of $7,000 to plaintiff where it was clear from plaintiff's testimony and her doctor's deposition that plaintiff did not have the ability to work or to earn $7,000 per year due to her progressive MS.[3]


SPOUSE HAD SPECIAL HEALTH ARE COSTS THAT SHOULD HAVE BEEN CONSIDERED IN SPOUSAL SUPPORT DECISION


Further, the trial court erred by failing to consider plaintiff's needs, specifically her health care costs (she pays $383 a month for COBRA benefits). [3]


INEQUITABLE

The court held that the "trial court's award of spousal support, in light of plaintiff's health condition and earning ability, was deficient and clearly inequitable."[3]



KALAMAZOO DENIED ATTORENY FEES INCORRECTLY



The court also agreed with plaintiff that the trial court abused its discretion by denying her need based request for attorney fees. [3]



KALAMAZOO COURT TOLD TO GET IT RIGHT



On remand, "the trial court must apply the correct legal analysis, giving special consideration to the specific financial situations of the parties and the equities involved." The trial court was also instructed to consider whether plaintiff was entitled to appellate attorney fees.[3]



[I]t was incumbent upon the trial court to consider whether attorney fees were necessary for plaintiff to defend her suit, including whether, under the circumstances, plaintiff would have to invade the same spousal support assets she is relying on to live in order to satisfy her attorney fees, and whether, under the specific circumstances, defendant has the ability to pay or contribute to plaintiff’s fees. See Gates, 256 Mich App at 438; MCR 3.206(C)(2)(a).



HIGH COURT SAID LOWER COURT DID IT WRONG AND TO DO IT OVER

Reversed and remanded. [3]



Posted here by

Terry Bankert

http://attorneybankert.com/


[1]

http://latimesblogs.latimes.com/gossip/2010/11/george-lopez-wife-divorce.html


[2]

http://www.torontosun.com/entertainment/celebrities/2010/11/23/16287361-wenn-story.html


[3]

Court: Michigan Court of Appeals (Published, this means it is Michigan Law today)

Case Name: Myland v. Myland ,e-Journal Number: 47425, Judge(s): K.F. Kelly, M.J. Kelly, and Borrello,No. 292868, Kalamazoo Circuit Court, LC No. 08-006024-DM



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