Nolo's Essential Guide to Divorce - Emily Doskow [126]
In a divorce, property is divided first, and then support is set. That's because who gets property is a factor in determining an appropriate level of spousal support. You and your spouse might decide, for example, that one of you gets more of the property instead of getting support. A judge could make the same decision, awarding one spouse the majority of the property and assets to ensure a comfortable future without a need for spousal support.
Of course, if at all possible, it's best not to leave those decisions up to the judge. Spousal support is as unpredictable as the rest of a contested divorce case, and you're both a lot better off working out an agreement yourselves than you are turning it over to a judge.
Where the High Road Leads
What does it mean to take the high road where support is involved? It doesn't mean being noble and giving up your right to ask for support, nor does it mean turning over your whole paycheck to your lower-earning spouse. It simply requires both of you to take an honest look at your needs and abilities and try to come to a fair agreement that's structured in the most advantageous way for both of you. (There's more about how to think about that in "Tax Planning When You Pay or Receive Support," below).
Types of Spousal Support and How Long They Last
Spousal support falls into two broad categories: short-term support and long-term or permanent support. "Reimbursement" support is a kind of long-term support. A spouse may also get temporary support before the divorce is final.
How long one ex-spouse must help support the other is as much in the judge's discretion as is the amount of support. Some judges start with the assumption that support should last half as long as the marriage did, and then work up or down from there by looking at certain factors (See "How Courts Set the Amount of Support," below.) Most states don't have guidelines for the duration of support, but a few do (Texas and Indiana limit it to only a few years even after long marriages), and legislation is pending in a number of other states. The duration of support also depends on the nature of the support. The discussion of each type of support, below, addresses how long each type of support might be expected to last.
It's possible that a former spouse might receive more than one kind of support at the same time. If a spouse is getting more than one kind of support, say rehabilitative and short-term, then when the spouse is employed again, the rehabilitative support would encl. The short-term support would continue until its termination date.
Temporary Support While the Divorce Is Pending
You and your spouse don't need to wait until everything in your divorce is settled to work out spousal support arrangements. In fact, the support issue may be most important immediately after you separate, to support the lower-earning spouse while your divorce is in process.
It's always a good idea to make a written agreement about temporary support. (For one thing, payments are tax deductible only if there's a signed agreement. See "Tax Planning When You Pay or Receive Support," below.) If you can't agree on a temporary support amount, then you'll probably spend some time in court arguing over it. If you have a right to support, it starts as soon as you separate, so get yourself to court right away. Chapters 3 and 5 discuss in more detail agreements and court proceedings for temporary support orders.
Short Term and Rehabilitative Support
Short-term support is ordered when the marriage itself was quite short. (This type of support lends itself to the possibility of a lump-sum payment instead of monthly checks. See "Paying Spousal Support in a Lump Sum," below.) Short-term support lasts only a few years, and its precise ending date is set in the court order.
Rehabilitative support,