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Henry Gornbein

Henry Gornbein

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When is Alimony Appropriate?

Posted: 04/ 8/11 09:53 AM ET

Alimony is not for everyone. I am writing from my perspective as a specialist dealing with many alimony cases in Michigan. The laws and ways that alimony is handled differ from state-to-state.

First of all, alimony is definitely not automatic. By law in Michigan, where I practice, it depends on the following factors:

1. The past relations and conduct of the parties. This includes fault factors and how the parties treated each other over the years.

2. The length of the marriage. The shorter the marriage, the less likely that there will be any alimony. The longer the marriage, the more likely that there will be some form of alimony.

3. The ability of the parties to work. If someone has not been working for many years, and the other spouse is working, then alimony is going to be very likely.

4. The source of and amount of property awarded to the parties. In Michigan, property and alimony can be interwoven. I will often negotiate settlements where, if someone is against paying alimony and there is enough property, some of the property can be shifted to the other spouse in return for that spouse receiving a lesser amount of alimony, a shorter term of alimony, or even no alimony at all.

5. The age of the parties. The younger someone is, the less likely that there will be an award of alimony. Someone in his or her 50's, in a long-term marriage, should be receiving alimony if there is the appropriate income level. Age is one of the key factors.

6. The ability of the parties to pay alimony. This is based upon the incomes of the two spouses.

7. The present situation of the parties. Here the attorneys and courts, in analyzing a case, will look at the needs of the parties, the health of the parties, and whether there are some unusual circumstances that would have a bearing on alimony. These are all looked at in determining whether there should be alimony, how much and for how long.

8. The prior standard of living of the parties. Here you look at lifestyle. Did the family live high? I've had many cases where people were living above their means, especially during the past few years when the economy crashed. These are issues that are looked at by the Court in determining alimony. The debt structure will be looked at as well. These are all factors that must be looked at, in totality, to get a full picture for alimony.

9. Whether either is responsible for the support of others. These are issues that would include whether you are getting or paying support of children from a prior relationship. You could be looking at perhaps alimony being paid or received by a prior spouse. In addition, when there are minor children, child support is a factor because there are only so many dollars to around.

When I look at alimony, I often tell clients that in determining whether and how long alimony should be, you should look at a continuum. At one end of the spectrum, in a very short-term marriage with young people where they are both working, there would be no alimony. At the other end of the spectrum, in a long-term marriage of 25 or 30 years with people in their late 40's or 50's and one party who has basically been a stay-at-home spouse, and where the income is high enough, there is definitely going to be alimony that could be long term. In some cases, it will be the until the death or remarriage of the spouse receiving alimony.

The other thing to bear in mind is that in a long-term marriage of 30, 35 or 40 years, long term alimony often doesn't mean "long term" for the simple reason that people in their mid- to late 50's are often approaching retirement age. Retirement is often a factor that is looked at for a review or modification of alimony, or in some cases, elimination of alimony. Many states use guidelines for alimony. I do not believe that you should blindly follow guidelines or formulas because there are too many factors involved. You have to look at alimony on a case-by-case basis. In addition, alimony, when properly structured, is tax deductible to the person paying and taxable income to the recipient.

I have also had cases where alimony has been paid by a wife to a husband. More and more courts are becoming gender neutral when it comes to issues of alimony. If the wife has been the primary wage earner, then it could be a case where she is to pay alimony. Think about your situation. If you have questions or thoughts, please feel free to share them.


 

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