Spousal Maintenance, How Much And For How Long?
Philip Tsai, partner at Tsai Law Company spoke at the October 7, 2011 annual King County Bar Association Hot Topic CLE to talk about “Issues that can send your case to trial or How to maximize your chances of settling.” This article is part one for Spousal Maintenance. If you would like to view the second part of this session, click Separate Property Claims.
One of the most challenging aspects of advising a family law client is the determination of alimony/spousal maintenance. One reason this challenge exists is that there is no schedule or specific financial guideline in Washington that the judicial officer determining maintenance is required to follow. While RCW 26.09.090 provides the Court with factors to consider when awarding or not awarding spousal maintenance, the Court has substantial discretion regarding fashioning the duration and amount of an award. An award of spousal maintenance is usually not disturbed on appeal unless a party can prove an abuse of discretion. No guideline makes it difficult for the family law practitioner to advise a client for settlement and can often result in a trial. No specific guideline can also lead to unpredictable outcomes and similar fact patterns with very different results.
Analysis in Washington
The most renowned treatise regarding judicial discretion and financial equity between of spouses in a marital dissolution proceeding was written by Judge Winsor, “Guidelines for the Exercise of Judicial Discretion in Marriage Dissolutions,” Washington State Bar News, vol. 14, page 16 (Jan. 1982).
In his treatise, Judge Winsor provides reasoned analysis of how judicial discretion should be exercised:
“In the case of a short marriage, the marriage has in fact not been the significant event that is normally presumed. Particularly, there has not been a long reliance on the marital partnership. Therefore, the emphasis should be to look backward to determine what the economic positions of the parties were at the inception of the marriage and then seek to place them back in that position, including provision for interest or inflation, if feasible. After doing that, if there are properties left over, they would presumably be divided about equally. Presumably in a short marriage maintenance would not be paid, except in extraordinary circumstances or perhaps for a very brief adjustment period.” …
“In the case of a long marriage, the goal should be to look forward and to seek to place the spouses in an economic position where, if they both work to the reasonable limits of their capacities, and manage properties awarded to them reasonably, they can be expected to be in roughly equal financial positions for the rest of their lives. Long term maintenance, sometimes permanent, is presumably likely to be used unless the properties accumulated are quite substantial, so that a lopsided award of property would permit a balancing of the positions without (much) maintenance.”
Winsor, Robert W., “Guidelines for the Exercise of Judicial Discretion in Marriage Dissolutions,” Washington State Bar News, vol. 14, page 16 (Jan. 1982).
While Judge Winsor’s article provides practical guidance regarding how to treat spouses of a marriage based on the duration, the type of property being awarded, and respective financial circumstances of the parties, it still does not answer the question of amount and duration of spousal maintenance.
Some family law practitioners in Washington use a 4 to 1 ratio regarding alimony, i.e., for every 4 years of marriage, 1 year of spousal maintenance is appropriate assuming all of the other factors are present for an award. Therefore, for a 20 year marriage, 5 years of spousal maintenance may be appropriate. However, there are many issues that can complicate even this seemingly straight forward formula. For example, should the pre decree or temporary period of maintenance be included in the ratio? What if the parties have been separated for a substantial period of time prior to the filing of the action? When there are children involved, RCW 26.19.071 clearly indicates that maintenance actually received is income to the recipient. However, should the spousal maintenance duration take into consideration the ages of the children including whether support will terminate for an emancipated child when child support is being ordered in addition to the spousal maintenance?
While there is no single answer to how to handle these issues when they arise in your cases, it is important to recognize and attempt to fashion a solution early on if a successful settlement is to be achieved.
Other States Approach
Many states use specific guidelines and formulas to fashion a spousal maintenance award. For example, while the ultimate award is left to the discretion of the Court, Santa Clara, California routinely uses a formula to determine spousal maintenance pendente-lite. The Santa Clara formula is as follows:
Payor Net Income (payor’s gross monthly income minus income tax and Social Security payments and minus child support) –(child support x 40%= ____________)- (Payee net income x 50% = _______________). When the starting alimony determination is made, the court can consider deviations such as credit for private school tuition, amount of community debt assumed by payor, etc.
In Florida, a long-term marriage is defined as 16 years or more. There is a presumptive award of permanent alimony. Marriages of less than six years are short term marriages and there is no presumptive award of permanent alimony. Marriage between six and sixteen years is a gray area in which no presumption of permanent alimony exists. In such cases, statutory factors are used with a rule of thumb timeline to fashion an appropriate award of spousal maintenance.
In Texas, a 10 year marriage is required for any amount of post dissolution maintenance unless one of the spouses is disabled. Support is limited to $2,500 per month for a period not to exceed three years.
In New Mexico, support during the pendency of the proceeding is set so that each party has one-half of any remaining income after fixed expenses are paid to include housing costs, utility expenses, minimum loan and credit card payments and insurance premiums. NMRA 1-122.A (2001).
American Academy of Matrimonial Lawyers Approach
One approach to establishing an alimony award is to follow the AAML‘s Commission Recommendations. Those recommendations provide a formula to determine the amount and duration of alimony focusing on the income of the spouses and length of marriage.
Specifically, to determine the amount of alimony, a spousal support award should be calculated by taking 30% of the payor’s gross income minus 20% of the payee’s gross income. However, when added to the gross income of the payee, the alimony award shall not result in the recipient receiving in excess of 40% of the combined gross income of the parties. Gross income is defined by the state’s definition of gross income under the child support guidelines, including actual and imputed income. There may be factors in any given case to deviate from this formula.
To determine the duration of the alimony award, multiply the length of the marriage by the following factors: 0-3 years (.3); 3-10 years (.5); 10-20 years (.75), over 20 years, permanent alimony. There may be factors in any given case to deviate from this formula.