Spousal and Child Support

A common concern of clients facing divorce is whether they can expect to pay or receive spousal support, also known as “alimony”. The answer to this question is always complicated, as there’s no bright line rule for when a party is entitled to spousal support.

The general thrust of whether or not a party is entitled to spousal support is whether one party will have a difficult time providing for their own support after a division of the marital property. This determination is based on a variety of factors, such as how long the couple was married, whether both spouses worked during the marriage or whether one spouse worked and supported the other. Other factors also come into play, such as the age of the spouse and whether it would be fair to award one spouse support in light of the circumstances of the divorce and other considerations, such as remarriage. Per usual, courts have discretion to award spousal support. Spousal support can be either a lump sum or periodic. The Michigan Supreme Court has stated that the following factors can be considered by a court in determining the amount of spousal support to be awarded:

• Past relations and conduct of the parties
• The length of the spouses’ marriage
• Either spouse’s earning abilities or ability to work
• The source and amount of assets awarded to each party through marital property division, and the income-earning potential of those assets
• The obligor’s ability to pay alimony
• The present situation of the parties
• The degree of difference in the spouses’ incomes
• The prior standard of living of the parties
• The alimony recipient’s responsibility for the support of others, including adult children with special needs
• Either party’s age, health or needs
• Fault
• Equitable principles, i.e.: “fairness”

The Michigan Court of Appeals has held that spousal support determinations must be made on a “case by case” basis and rejected the use of a simple formula to determine spousal support. While this makes for a complicated determination of support, it also means that the Court does not have to rigidly order a certain figure to be paid without considering the particular circumstances. Generally speaking, the length of marriage and the earning potential of the spouse receiving support versus that of the paying spouse are strong factors to consider, although not necessarily dispositive. Other factors might weigh in the other direction. In other words, a 20 year marriage in which the wife stayed home while the husband was earning over $200,000 a year might be a very good candidate for spousal support, but not necessarily. Each person’s situation is different.

Additionally, property settlements can be made in lieu of spousal support given the settlement is large enough to provide for the spouse’s support. In other words, a court might decide that an award of the marital home to one spouse is sufficient spousal support and may not order that one spouse pay the other anything beyond the settlement.

In any event, the determination of spousal support is highly fact-specific. If you are concerned about paying or receiving spousal support, you should contact me to discuss your individual options.

Unlike spousal support, the court does not have discretion whether or not to award child support. Even if parties enter into an agreement not to pay child support, the courts must undertake their own analysis to determine whether or not child support is warranted in the circumstances. The operative consideration is always the “best interest of the child(ren)”, rather than the parents. Another important thing to mention is the fact that a child support order is enforceable as a court order, meaning that failure to pay can result in garnishment and even arrest. The amount of child support is calculated using the Michigan Child Support Formula which takes a variety of different things into account. Some of the most important factors are the amount of custody each respective parent has and each parent’s individual income. However, the evaluation can be much more complicated than a simple math equation. The court takes into account the following factors:

• The parents’ incomes
• The number of nights per year (“overnights”) the child spends with each parent
• The number of children supported
• Health care costs
• Child care costs
• Other factors

As noted above, determining exactly how much support one can expect to pay or receive is complicated and involves a variety of factors but the “best interest of the child(ren)” test is not merely lip service to higher principles. The Court will strive to fashion a child support order that is designed to help the child(ren) by ensuring the custodial parent has enough by taking into account any and all factors in play. For instance, if the custodial parent (the parent having primary custody of the child(ren)) is only able to have minimal employment because of child care, they may necessarily be entitled to more child support than someone with better circumstances.

The amount of custody is an important consideration in child support awards. A parent with sole custody is necessarily entitled to more support than one with one weekend a month. Often parents are concerned that they will be ordered to pay child support despite the fact that they have the majority of custody and already provide the majority of the child’s actual support. As previously noted, the court is not so much concerned with the circumstances of the parents as much as the well-being and support of the child. In this example, the child would be (arguably) well-supported already and the need for much child support would be minimal.

Another situation often facing clients is when one has already been ordered to pay child support but has not done so. Often parents will find themselves in a difficult situation and will either opt not to participate in proceedings in which child support is determined or have a change in income and find themselves with a child support payment that they cannot afford. In this situation, it is important to contact me as soon as possible as the consequences for failure to pay child support can be extremely harsh, including arrest, license suspension, liens or levies against property, garnishment, passport consequences, and/or criminal charges if not addressed.

Whatever your particular concern, there are numerous possibilities of outcomes when it comes to child support. It’s best to contact me to discuss your individual options if you are concerned about paying or receiving child support.