How is alimony and child support calculated
How Judges Determine the Amount of Alimony
Find out what judges consider when deciding how much support one spouse has to pay to the other during or after divorce.
Nobody likes paying alimony. At least when you're paying child support, you can remind yourself that it's for your kids, not your ex. Long-term alimony (or spousal support, maintenance, or whatever term your state uses) is less common that it used to be. But some spouses—particularly those who've stalled their own careers while taking care of the home and children—still need the financial help, at least for a transitional period during and after divorce.
As with all issues in a divorce, you and your spouse can agree between yourselves that one of you will pay alimony or spousal support—and if so, how much and for how long. But if you can't agree, a judge will decide for you. Even when you hope to reach an agreement, it helps to know how alimony or spousal support works, so that you can negotiate wisely.
- Who Gets Alimony?
- When Do Judges Use a Formula to Calculate Spousal Support?
- What Judges Consider When Setting Alimony
- How Do Judges Determine Spouses' Needs?
- Are Savings Included in a Couple's Standard of Living?
- What Is a Spouse's Earning Capacity?
- Upper Limits on Alimony and One Judge's Informal "40% Rule"
- How Long Does Alimony Last?
- Getting Help With Alimony
Who Gets Alimony?
Before judges get to the point of figuring out how much the alimony checks will be, they need to determine who is eligible to get the payments, and what type of support is appropriate.
Although some people still believe that only wives get alimony, the right to this financial support doesn't depend on gender. It also doesn't depend on who filed for divorce. Either spouse may request alimony in the divorce petition (or complaint) or the response (answer) to the initial divorce papers. Then, unless the couple reaches an agreement on the issue, the judge has to decide whether to grant that request.
In the vast majority of U.S. states, eligibility for alimony is based on:
- need—whether one spouse needs financial support, and
- ability to pay—whether the other spouse can afford pay that support.
But some states have very specific—and strict—requirements that must be met before a judge may award any alimony. Also, the qualification requirements are often different for the various types of spousal support, such as:
- temporary alimony (or alimony "pendente lite") after a divorce case has started but before the judge issues the final divorce judgment or decree
- rehabilitative spousal support (sometimes called transitional support, short-term maintenance, or similar terms), which is meant to help a spouse make the transition toward becoming self-supporting, and
- "permanent" alimony or maintenance in the rare cases when a spouse can't be expected ever to become self-supporting and so needs long-term periodic payments.
(Learn more about how alimony works in general, as well as the specific types and requirements for spousal support in your state.)
When Do Judges Use a Formula to Calculate Spousal Support?
Unlike with child support orders—which are based on detailed guidelines for calculating the amount of support—the amount of alimony is usually based on what the judge believes is fair under the circumstances (known in legalese as the judge's "discretion"). So while you might find websites touting alimony calculators, very few states actually use these formulas.
New York, Illinois, and Colorado are the notable exceptions to this norm. In those states, spousal maintenance is typically calculated by subtracting a percentage of the paying spouse's income from a percentage of the recipient's income. But even in those states, judges may still choose to depart from the guidelines when they believe the calculated amount would be unjust or inappropriate.
The use of formulas is somewhat more common for calculating temporary alimony, either as a matter of state law (like in Pennsylvania) or as a matter of court policies in certain counties.
But when a state's law doesn't provide a guideline, judges will use these formulas only as a starting point. They'll still need to follow the legal requirements for considering the particular circumstances in a couple's marriage (discussed below).
What Judges Consider When Setting Alimony
In the vast majority of states, the laws require judges to consider certain factors when deciding how much alimony to award in a divorce. They usually must explain their reasons in their orders. Beyond that, however, judges are mostly free to decide what's appropriate in any particular case.
The specific factors that judges must consider vary from state to state, but they typically include:
- both spouses' needs
- each spouse's ability to earn and support themselves, based on their education, employment history, age, health, and other factors
- both spouses' other financial resources, including separate property, assets they did or will receive as part of the property division in their divorce, expected future assets, and debts
- whether the supported spouse can't work outside the home because of the needs of a child or children living with that spouse
- each spouse's contributions to the marriage, including through childcare, homemaking, and efforts to further the other spouse's education, career, and future earning capacity
- whether the supported spouse was out of the workforce or passed up career opportunities in order to care for the couple's children, their home, or both
- the tax consequences of alimony payments, under both federal law (which eliminated the alimony deduction for divorces finalized or alimony orders modified after 2018) and state law (which might not follow the federal rules)
- the length of the marriage (although that's more of a factor when deciding how long alimony will last), and
- any history of domestic violence.
In a few states, judges will also consider a spouse's adultery or other misconduct when making alimony decisions.
How Do Judges Determine Spouses' Needs?
When judges are considering both spouses' needs, state laws usually explain that those needs are based the standard of living a couple enjoyed during the marriage (before they separated). As a practical matter, of course, many divorced spouses find it difficult to maintain that living standard in the immediate aftermath of divorce, given the added expenses of maintaining two separate households—especially when children are in the picture.
That's why most judges focus on spouses' reasonable needs. And a few state laws define "need" narrowly, as the reasonable minimum amount required to meet basic living expenses. Of course, it's up to the individual judge to sort out what's reasonable under the circumstances. And in cases when there simply isn't enough money to go around, judges usually look for a way to make the divorced spouses share the financial pain equally.
Example: Roderic Duncan, a now-deceased former family law judge (and Nolo author) shared an example of how a judge might determine a supported spouse's reasonable need for alimony: "Imagine that a husband who files for divorce earns $5,000 a month. His wife stays at home with three young children and earns no income. Under their state's formula, she's entitled to $1,650 in monthly child support. But say she demonstrates that her total rock-bottom needs (including rent or house payments) are $2,300 a month. If convinced that her budget is solid, the judge would conclude that she needs $650 in spousal support ($2,300 minus $1,650) to make up the difference." And if all the other considerations support that amount (including the husband's ability to pay it), the judge might very well award that much in alimony—at least until the children get older and the wife can reenter the workforce and begin to support herself. (But see more below on potential limits to the amount of alimony, even when the recipient has demonstrated a need for more support.
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Are Savings Included in a Couple's Standard of Living?
The goal of maintaining the marital standard of living after divorce might not be a problem when the high-earning spouse has enough money to cover both spouses' expenses, even at their former lifestyle. But what about couples who agreed it was important to put away a generous slice of their income into savings, retirement accounts, or other investments? Should judges consider that habit to be a part of their standard of living—and therefore include a savings component in the amount of alimony?
If you're fortunate (or frugal) enough to be facing this issue, the answer to that question will depend on where you live. Courts in different states have taken opposite views on the question. For instance:
- California courts have long held that when a couple's marital standard of living included savings and investments, judges may consider that as part of their ongoing expenses. As one court put it, the wife shouldn't "be deprived of her accustomed lifestyle just because it involved the purchase of stocks and bonds rather than fur coats.
" (In re Marriage of Winter, 7 Cal. App. 4th 1926 (1992).) - In contrast, the Florida Supreme Court has held that alimony may not include a savings component. Even when a couple had a history of frugality and savings, the court explained that the supported spouse would receive a share of those savings as part of the property division in the divorce, so the judge shouldn't include "speculative post-dissolution savings" in alimony. (Mallard v. Mallard, 771 So.2d 1138 (Fla. Sup. Ct. 2000).)
The bottom line: The courts in your state may or may not have taken a stand on this and many similar questions. There's plenty of room for disagreement. If you're dealing with a dispute over alimony, you should speak with an experienced, local family law attorney who will understand the rules in your state—and how local judges are likely to deal with these issues.
What Is a Spouse's Earning Capacity?
As we've seen, states typically require judges to consider both spouses' ability to earn.
That means a judge won't just look at current income, but what spouses could reasonably earn, given their education, training, experience, job skills, and the local demand for those skills.
When either spouse is voluntarily earning below their potential, the judge may "impute" income to that spouse. For example, say you were the high-earning spouse in your marriage, making $200,000 a year as a lawyer. But after you and your spouse separated, you quit your job to become a sculptor earning less than $30,000 a year. The judge might order you to pay an amount of alimony consistent with your ability to earn rather than your actual earnings.
However, if you had a valid reason to switch to a lower-paying job—for instance, because work-related stress was causing medical and psychological harm—you might be able to provide evidence to convince a judge not to base the alimony amount on your old salary. But you can expect a fight from your spouse or ex.
The supported spouse's current and future earning potential also comes into play when judges are setting the amount of alimony.
As part of rehabilitative alimony, judges often order a vocational evaluation with an expert who will analyze how much that spouse can currently earn and what steps need to be taken in order to become self-supporting.
Upper Limits on Alimony and One Judge's Informal "40% Rule"
A few state laws set caps on the amount of alimony. In Illinois, for instance, when maintenance is calculated under the state's guideline formula, the result may not be more than 40% of both spouses' combined net incomes. Also, when the guideline calculation would result in combined spousal maintenance and child support that is more than 50% of the paying spouse's income, the law says that judges may dispense with the state's formula and decide on a fair amount of support after considering the relevant circumstances in the case. (750 Ill. Comp. Stat. § 5/504(b-1) (2022).)
Even when there isn't a statutory limit on the amount of alimony, some judges might follow their own unwritten standards. For instance, Judge Duncan told us: "When I was on the bench, I had a personal and informal rule that I would usually not leave people who were paying support with less than 40% of their income after they had made their child support and alimony payments, no matter how great the other spouse's need.
Without at least that amount, it seemed to me that a wage earner would have little incentive to go to work every day. However, if the couple had more than four children and the supported spouse had no job skills, I might well go lower than 40%. I have never discussed this ‘rule' with other judges, but I would expect that many—although not all—would agree with the reasoning."
How Long Does Alimony Last?
By its very nature, temporary alimony lasts only until the divorce is final. Some states also have absolute limits on particular types of spousal support, such as a two-year limit on "bridge-the-gap" alimony in Florida. And all alimony ends when the supported spouse remarries (or, in some states, begins living with a nonmarital partner).
Otherwise, states have different rules for determining how long support payments will last. Often, judges will base that decision on the same considerations as when they set the amount of maintenance. Other times, state laws will provide separate rules for the duration of alimony.
For example:
- In California, spouses are expected to become self-supporting in a "reasonable" amount of time. When the marriage has lasted for less than 10 years, that generally means half the length of the marriage.
- In Kansas, alimony may not last for more than 121 months, with rare exceptions.
Getting Help With Alimony
If you want to avoid the expense, stress, and time of a divorce trial, but you and your spouse are having trouble resolving your disagreements about alimony, mediation could be a good solution. When you're able to reach a comprehensive settlement agreement before starting the divorce process, you'll be able to file for an uncontested divorce—which means that you can probably get a DIY divorce without a lawyer.
But if one of you wants maintenance and the other hasn't agreed, you should at least speak with a lawyer about your rights and options going forward. Particularly in states that don't use a formula to calculate spousal support—most of the country—the judge will decide on how much alimony to award based on the evidence you and your spouse provide about your expenses and assets, earning capacity, the standard of living you had during the marriage, and all the other factors that go into alimony decisions.
An experienced family law attorney will know how to gather the right kind of evidence to convince the judge of your position—or even to convince your spouse's lawyer to agree to a settlement.
How is Alimony and Child Support Determined?
Husband and wife separate. They are mature, responsible adults who want the best for their children, so they are able to quickly establish an informal custody schedule that enables both parents to spend meaningful time with the children. Husband and wife both work, but husband’s earnings are far greater than wife’s. The parties agree, in principle, that husband will pay child support. Husband consults with an experienced family law attorney to determine how much child support he owes.
Child support is typically calculated using North Carolina’s Child Support Guidelines
In North Carolina, child support is calculated based on the North Carolina Child Support Guidelines. In most cases, lawyers and judges can calculate the proper amount of child support by plugging appropriate figures into a worksheet.
In general, the amount of child support is determined based on the incomes of the husband and wife plus additional costs including medical insurance and child-care expenses.
Child support ends when a child turns eighteen, so long as the child has graduated from high school. Child support may last beyond a child’s eighteenth birthday if additional time is needed to complete high school. While issues related to the amount of child support do arise in family law cases, in general the Guidelines and North Carolina law control the amount and duration of child-support obligations.
Alimony is the unwieldy elephant in the room in contested divorce cases
With custody and child support out of the way, husband and wife face the next looming issue: Alimony. She says she needs it and deserves it. He says she should not spend so much money. Moreover, husband says, he cannot afford to pay the amount of alimony wife has requested. He says wife ought to get a job and work towards supporting herself.
What happens next?
Unlike child support, in general North Carolina law provides no formula for determining the amount or duration of alimony. In many cases, alimony is not awarded at all. In order to be awarded alimony, a spouse must prove to a judge that he or she is a “dependent spouse.” If spouses earn similar incomes, then most likely neither spouse will be considered “dependent” and no alimony will be awarded.
If, on the other hand, one spouse earns significantly more income than the other spouse, then alimony may be awarded.
Once a spouse who earns less is deemed dependent, the amount and duration of alimony payments must be determined. Under North Carolina law, the amount and duration of an alimony award is based upon a number of factors including the length of the marriage, the reasonable needs of the spouses, the ability of one spouse to pay alimony, the dependent spouse’s standard of living, the dependent spouse’s educational background, and any so-called marital misconduct.
In general, longer marriages result in alimony awards of greater duration. Parties who earn higher incomes can expect pay more significant monthly sums of alimony than parties with more modest incomes.
It is important to note, however, that North Carolina judges can and do exercise a wide range of discretion in crafting alimony awards. The absence of any formula for determining the amount and duration of alimony as well as the wide disparity in awards handed down by judges can create difficulties for parties and lawyers seeking to resolve alimony issues in contested divorce cases.
Marital misconduct can play a role in the amount and duration of alimony awards
When determining whether a spouse is entitled to alimony, marital misconduct is relevant and must be considered by the court. “Marital misconduct” can include abandonment, excessive use of alcohol or drugs, or adultery. If a higher-earning spouse is ordered to pay alimony to a dependent spouse, North Carolina case law appears to suggest that marital misconduct committed by the higher-earning spouse will result in higher monthly alimony payments or a longer duration of alimony payments—or both.
If a wife has committed adultery prior to a couple’s separation, her adultery may bar her from recovering any alimony from her husband. However, in order for a husband to seek to bar his ex-wife from receiving alimony on this basis, he must not have committed adultery himself.
Spouses seeking or defending against alimony claims should seek out the help of an experienced family law attorney
The application of North Carolina’s alimony laws can result in widely disparate outcomes based upon the factors discussed in this article as well as upon the unique facts and circumstances of a given case. Spouses seeking alimony as well as spouses defending against alimony claims should seek help from competent legal counsel who are experienced at presenting their clients’ positions effectively in a court of law.
If you or someone you know has any questions regarding how alimony and child support payments are determined or any related type of matter feel free to contact the experienced family law attorneys at Arnold & Smith, PLLC in Charlotte, North Carolina.
Call toll free at (955) 370-2828 or Contact Us Here.
up to what age they pay, how much percentage of income they can withhold, and what documents are needed to apply for alimony
1. Who can apply for child support?
Alimony is maintenance that minor, disabled and/or needy family members are entitled to receive from their relatives and spouses, including former ones.
A child can count on alimony:
- if he is under the age of 18 and has not yet become fully capable by decision of the guardianship or court. Alimony in favor of a child may be filed by his guardian, custodian, adoptive or natural parent with whom the child remains; nine0010
- if he is over 18 years of age but has been declared legally incompetent.
One of the spouses can count on alimony if:
- he needs and is recognized Disabled adults who are entitled to alimony are considered disabled people of groups I, II, III and persons who have reached pre-retirement age (55 years for women and 60 years for men) or the generally established retirement age.
0010 - wife, including ex, is pregnant or less than three years have passed since the birth of a common child;
- a spouse, including a former one, needs and cares for a common disabled child under 18 years of age or a child disabled since childhood of group I;
- ex-spouse Persons in need are those whose financial situation is insufficient to meet the needs of life, taking into account their age, health status and other circumstances. marriage or within five years thereafter, and the spouses have been married for a long time.0010
Also, child support can be received by:
- disabled and needy parents, including stepfather and stepmother, from their adult able-bodied children. This rule does not apply to guardians, trustees and adoptive parents;
- disabled and needy grandparents - from their adult able-bodied grandchildren, if they cannot receive maintenance from their children or spouse, including the former;
- minor grandchildren - from their grandparents, who have sufficient funds for this, if they cannot receive alimony from their parents.
After the age of majority, grandchildren can count on alimony if they are recognized as disabled and they cannot receive assistance from their parents or spouses, including former ones; nine0010 - incapacitated persons under 18 years of age - from their adult and able-bodied brothers and sisters, if they cannot receive them from their parents, and incapacitated persons over 18 years of age - if they cannot receive alimony from their children;
- disabled and needy persons who raised and supported a child for more than five years - from their pupils who have become adults, if they cannot receive maintenance from their adult able-bodied children or spouses, including former ones. This rule does not apply to guardians, trustees and adoptive parents; nine0010
- social service organizations, educational, medical or similar organizations in which the child is kept can apply for child support. In this case, alimony can be collected only from the parents, but not from other family members.
Organizations can place the funds received in the bank at interest and withhold half of the income received for the maintenance of children.
2.How to apply for child support?
If there is no agreement between the parties on the payment of alimony or the other party refuses to pay them, apply to the court at the place of your residence:
- to the justice of the peace, if the recovery of alimony is not related to the establishment, contestation of paternity or motherhood, or the involvement of other interested parties;
- to the district court - in all other cases.
If one of the parents voluntarily pays support without a notarized agreement, the court can still collect support from him in favor of the child. nine0005
You can file for child support at any time as long as you or the person you represent are eligible.
The plaintiff does not pay state duty for consideration of the case on recovery of alimony in court.
3. What documents are needed to apply for child support?
The child support claim must be accompanied by:
- copies of it, one for the judge, the defendant, and each of the third parties involved; nine0010
- documents confirming the circumstances that allow you to apply for alimony. Such documents, for example, may be a birth certificate of a child, a certificate of marriage or its dissolution;
- a single housing document and income statements for all family members;
- calculation of the amount you expect to receive towards child support. The document must be signed by the plaintiff or his representative with a copy for each of the defendants and involved third parties;
- if the claim will not be filed by the plaintiff himself, additionally attach a power of attorney or other document confirming the authority of the person who will represent his interests, for example, a birth certificate.
nine0010
As a rule, maintenance is ordered from the moment the application is submitted to the court. They can be accrued for the previous period (but not more than three years before the day of going to court) if you provide evidence in court that you tried to contact the other party and agree or the defendant hides his income or evades paying alimony. Such evidence can be letters sent by e-mail, telegrams or registered letters with notification.
4. What is the amount of alimony? nine0003
The court determines the amount of alimony based on the financial situation of both parties. Alimony for the maintenance of minor children, as a rule, is:
- per child - a quarter of income;
- for two children - a third of the income;
- three or more children - half of the income.
These shares can be reduced or increased taking into account the financial and marital status of the parties and other important ones, including the presence of other minor and / or disabled adult children, or other persons whom he is obliged by law to support; low income, health or disability of the support payer or the child in whose favor they are collected.
nine0005
"> factors. When determining the amount of alimony, the court seeks to maintain the level of financial support that the child had before the divorce or separation of the parents. If each of the parents has children, the court determines the amount of alimony in favor of the less well-to-do of them.
In addition to the share income, the court may order child support or a portion of it in the form of a certain amount of money.As a rule, such measures are resorted to when the defendant hides part of his income and a share of his official income cannot provide the child with the standard of living that he had.
In exceptional circumstances - illness, disability of the child, lack of suitable housing for permanent residence, etc. - the court may oblige one or both parents to additional expenses.
The amount of alimony is indexed in proportion to the growth of the subsistence minimum (for the population group to which their recipient belongs).
As a general rule, maintenance withheld from the debtor's income for the maintenance of a minor child cannot exceed 70% of his income. In other cases - 50% of income. nine0005
5. Who can not pay child support?
Parents are required to support their children after birth and up to 18 years of age, if the child does not marry earlier or there is no Emancipation - declaring a minor fully capable. It is possible if a minor who has reached the age of 16 works under an employment contract (including under a contract) or, with the consent of his parents (adoptive parents, guardian), is engaged in entrepreneurial activities. The decision on the emancipation of a minor is taken by the guardianship and guardianship authorities with the consent of the parents (adoptive parents, guardian). If there is no consent from the parents, the decision on emancipation can be made by the court. nine0005
"> emancipated.
Parents must support the child, even if he does not need material assistance. The incapacity of the parents, the recognition of their incapacity in court or the deprivation of parental rights also does not release from this obligation.
Alimony may be denied: or spouse, including an ex, if he or she has become disabled and needs help due to alcohol, drug abuse, or intentional crime, or has behaved unworthily in marriage, such as gambling;
How is child support determined? | Juristaitab
From now on, the subsistence minimum is separated from the so-called minimum wage, which has raised the subsistence minimum every year until now. HUGO lawyer Vahur Kõlvart explains the nature of the new system below.
In the future, minimum child support will have five different components. nine0005
A base amount of at least 200 euros per child, indexed annually to the previous year's consumer price index (which will be officially published by Statistics Estonia on 1 April). After indexation, the base amount resulting from indexation in the previous year is considered the base amount for the next year.
3% of the country's average monthly gross salary for the previous year is added (which is also officially published by Statistics Estonia on 1 April). nine0005
Number of children supported in one family - in this case, the amount of maintenance for subsequent children is reduced by 15 percent compared to the amount of maintenance for the first child.
The amount of maintenance is not reduced in the case of twins/twins and in the case of children with a difference in age of more than three years.
Family allowances - in comparison with the past, the law clearly states that the parent is not obliged to provide for the maintenance of the child to the extent that the needs of the child can be met from the child allowance and the large family allowance. If the benefit claimant receives these benefits, half of the benefit is deducted from the allowance for each child. However, if the recipient of the benefit is a payer, this amount is added to the alimony. nine0005
Child living together - if the child lives with the parent who pays support for an average of 7 days per month per year, the amount of support is reduced in proportion to the time spent with the obliging parent. Therefore, if the child lives equally with both parents, maintenance can only be collected if this is due to the greater needs of the child, a significant difference in the income of the parents, or an uneven distribution of expenses related to the child between the parents.
nine0005
Example:
The child lives with the mother, stays with the father for an average of 10 days per month, and a child allowance of 60 euros is paid into the child's mother's account. The minimum allowance per child is 70.43 euros.
Base amount: 200 euros 3% of the average salary for the previous year: the average gross salary in 2020 was 1448 euros per month, of which 3% is 43.44 euros.
Family allowances: half of the child allowance is deducted from the parent's maintenance obligations (60/2=30), then the maintenance amount is 213.44 euros (243.44-30). nine0131 Cohabitation: If the child lives with the parent in charge of maintenance between 7 and 15 days per month, the amount of maintenance may be further reduced according to the number of those days. The basis is how many percent of the time the child spends with the parent responsible for child support. 15 days count as half a month. In this example, the child spends 10 days or 66.
