Question: I’ve been married for 12 years and my husband has been the primary breadwinner. Now we are getting a divorce. Am I entitled to spousal maintenance? How much spousal maintenance should I ask for?
Answer: There are no spousal maintenance guidelines. There is no calculator where you can simply plug the numbers in and it will spit out an amount and duration for spousal support. Each case is different, which gives the Judge broad discretion in determining spousal maintenance.
There are many ways to tackle spousal maintenance. Here is one analytical approach to spousal maintenance that can be helpful whether you are the party seeking spousal maintenance or the party defending against it. Too often, parties and attorneys throw out an arbitrary number for spousal maintenance. They give little thought to why they are asking for that number other than it is big (if they are seeking maintenance) or small (if they are defending against it). At Modern Law, our intentional approach to spousal maintenance has proved successful because we can easily show the “why” behind our proposed spousal maintenance amount. Obviously, if you can get the judge to understand the logic behind your request, he or she will be more likely to rule in your favor.
The best part is that spousal maintenance analysis is not rocket science. To begin, you will need an Affidavit of Financial Information (“AFI”) for both parties. Once you have the AFIs, all you need to do is ask and answer three simple questions:
- What is my net monthly income? How much money do you take home each paycheck after taxes and deductions? If you are a salaried employee, this answer should be easy to find using your most recent paystubs. Make sure you are using a standard paystub and not one that includes over-time or other forms of specialty pay. If you are not a salaried employee and your income varies from month to month (or year to year), your best bet is to look at your last three years’ W2s or tax returns. Unless a major change has occurred in the present year, it is generally acceptable to average your last three years of income to estimate your income for the current year.
- What are my monthly expenses? How much money do you have going out each month? Make sure you are not including expenses that are taken out of your paycheck, otherwise you may be double-dipping. Also, make sure you are listing all of your expenses, but that you aren’t inflating your expenses. Remember, you may need to defend these amounts in Court, so overestimating your expenses may end up hurting your case. That being said, it is okay to include expenses you do not currently pay for but anticipate paying for in the near future. Finally, make sure you are annualizing the expenses that fluctuate each month. In other words, you add up the fluctuating expenses and then divide the yearly total by 12 months.
- What is my monthly shortfall or excess? How much money do you have left over each month after you have paid your bills? If your expenses are greater than income, it is possible for this number to be negative. In fact, if you are the spouse seeking support, chances are your number is negative.
Once you have answered these questions for yourself, the next step is to run the same exercise for the other party. When looking at the other party’s income, make sure they aren’t hiding anything. Also, when determining the other party’s expenses, make sure they are not “double-dipping” or inflating their expenses. This happens frequently, so it is important to be on the lookout for expenses you know for a fact are not accurate.
When you have completed this exercise for both parties, you are ready to come up with your proposal for spousal maintenance. If you are seeking spousal support, you want to request an amount within the range of what you need (monthly shortfall) and what the other party can afford to pay (monthly excess). Conversely, if you are defending against spousal maintenance, you either want to prove that the other party can support themselves (they have no monthly shortfall) or propose an amount within the range of what you can afford to pay (monthly excess). Obviously, if you do not have any monthly excess, you should make the argument that you cannot afford to pay spousal support regardless of the other parties’ need.
As a final comment, if you are going to trial on this issue, I highly recommend making a table that shows your work, so the Judge can visually see how you reached your conclusion. The less work the Judge has to do to understand your position, the better!
