August 25, 2013

Alimony in Michigan and Spousal Support

Alimony in Michigan explained

“Alimony” which is the same as “Spousal Support” are payments made to support a spouse.  In Michigan, alimony is typically paid by a supporting spouse to a dependent spouse. The primary factors in determining an amount of alimony are the age, education, length of marriage and income of the parties. However, there is no rigid rule regarding alimony.

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The Basics – Alimony in Michigan explained

Alimony is a form of support to a dependent spouse.  The general rule is that a spouse is dependent if he/she is substantially dependent on the income of another spouse for the regular necessities of life. The amount of alimony or spousal support will vary with the disparity of the parties incomes and the length of the marriage. Alimony can be awarded for a term of years and/or upon the death or remarriage of the parties.

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The Details – Alimony in Michigan explained

Fault and Alimony

People often confuse the notion that Michigan is a no-fault state as meaning fault does not matter.  It is important to note, that while fault of a party or basis for the breakdown of the marriage, is a relevant factor in awarding alimony in Michigan or spousal support in Michigan notwithstanding the notion that Michigan is a no-fault divorce State.  Source:  The leading spousal support case in Michigan is Parish v. Parish 138 Mich App 546 (1984) and the first ‘Parish factor’ is “The past relations and conduct of the parties.”  Prior conduct (fault) can make a difference in both the amount and duration of alimony and spousal support.

Alimony in Michigan guidelines

The Michigan Court of Appeals in the case of Myland vs. Myland stated that Michigan divorce law prohibits the use of a rigid and arbitrary formula that fails to account for the parties unique circumstances. Notwithstanding the Myland case, most courts, mediators and attorneys use guidelines in evaluating a spousal support claim.  There are two leading guideline computer programs.  One by Springfield publications prognosticater, and another by MarginSoft, written by former Washtenaw County referee, Craig Ross.   Some Judges have thier own guidelines in determining alimony.  These formulas vary.  Recent Court of Appeals cases say alimony guidelines are appropriate.

Modifiable vs. Non-Modifiable Alimony

The statutory right to modify spousal support is set forth in MCL 552.28 but does not address proper cause or change of circumstances.  The requirement for a change of circumstance to modify spousal support is found in case law.  Obtaining new (or better) employment, collecting social security or otherwise improving his/her financial condition has been held to be a sufficiently changed circumstance to modify spousal support.

A Michigan divorce court can only order modifiable alimony in Michigan.  However, parties can agree on a non-modifiable award pursuant to the Michigan Court of Appeals case of Staple v. Staple.  Caution should always be considered when evaluating a non-modifiable award.  For example, if you lose you job, you are still obligated to pay.  On the other hand, if your health fails or your income falls, you may be stuck with inadequate support.

If you want to modify an existing alimony award, we can help, provided circumstances have changed since the entry of the last order. A typical change in circumstances is a change in income. A change in need is also a common basis for seeking modification of alimony.

Modifiable Alimony

Schaeffer v. Schaeffer, 106 Mich App. 452, 260 (1981):  A modification of an award of alimony under this section [552.28] may rest only upon new facts or changed circumstances arising since the judgment which justify revision.

Graybiel v. Graybiel, 99 Mich App. 30 (1980):  The party moving for modification of spousal support has the burden of showing sufficiently changed circumstances to warrant modification.

Crouse v. Crouse, 140 Mich App 234 (1985): a former spouse’s continued cohabitation (e.g. with a boyfriend/girlfriend) is not a sufficiently changed circumstances to warrant modification of spousal support.

Gates v. Gates, 256 Mich App 420 (2003):  The burden is on the moving party to show a change of circumstances using the facts and circumstances existing at the time of the request.  A presumptive alimony term does not shift the burden of proving change circumstances to the non-moving party.

Ackerman v. Ackerman 197 Mich App 300 (1992):  The receipt of disability benefits under an insurance policy was a sufficiently changed circumstance to warrant modification of spousal support.

Oknaian v. Oknaian 90 Mich. App. 28 (1979); Hall v. Hall, 157 Mich App 239 (1987):  Alimony in gross (a lump sum or periodic payment that does not terminate upon a contingency) is generally non-modifiable regardless of changed circumstances.

Non-modifiable alimony

Staple v. Staple, 241 Mich. App. 562 (2000), Parties may agree to waive the statutory right to petition the court for modification of alimony notwithstanding a change of circumstances.  The parties must clearly and unambiguously set forth that the parties (1) forgo their statutory right to petition the court for modification and (2) agree that the alimony provision is final, binding and non-modifiable.

Tax Considerations

Most alimony or spousal support payments are tax deductible to the person paying and tax deductible to the person receiving support. This is governed by Internal Revenue Codes section 71 and section 215.

Addressing potential tax issues in your negotiations can avoid problems in the future. For example, many lawyers believe that alimony payments are always tax-deductible to the person paying and taxable as income to the recipient. This is not the case.

In order to qualify for the taxable or tax-deductible status certain requirements must be met. These requirements are often overlooked. Under I.R.C. sec 215, payments made for alimony are allowed as a deduction. However, in order for payments to be tax deductible, the eight requirements of I.R.C. sec, 71 must be met.  The mere use of the word “alimony” or “spousal support” does not make the payment taxable or tax deductible.  The proper application of I.R.C. sec. 71 is required.  The requirements are as follows:

      1. The payments must be made in cash; (e.g. providing a car is not deductible);
      2. The payments must be to a spouse or on behalf of a spouse;
      3. The payments must be made pursuant to a divorce or separate maintenance instrument;
      4. The payments must not be designated as non-qualifying by the payor or non-taxable to the recipient;
      5. Spouses may not be members of the same household;
      6. The payment must terminate at the recipient spouse’s death;
      7. Spouses may not file a joint return; and
      8. The payment cannot constitute child support.

Source:  Internal Revenue Service – http://www.irs.gov/taxtopics/tc452.html

Negotiation Strategies

There are many creative ways to both, maximize or minimize a parties’ alimony or support award or obligation in a Michigan divorce, including tax affecting assets, discounting, buy-outs of an obligation, trading assets or debts in exchange for more or less alimony/spousal support and proper application of the alimony/spousal support factors. Your attorney should be competent in creative solutions to maximize his or her client’s entitlement or exposure. Many attorneys run “Guidelines” to estimate a client’s exposure or obligation for support. While “Guidelines” are appropriate in analyzing child support, Alimony/Spousal support is much more complex.

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The Law – Alimony Law in Michigan

Michigan Compiled Laws 552.23; MSA 25.103

The legal authority for a court to award alimony is found in Michigan Compiled Laws 552.23; MCL 552.23; MSA 25.103 which provides:  “. . .if the estate and effects awarded to either party shall be insufficient for the suitable support and maintenance of either party, the court may further award to either party . . . alimony out of the estate real and personal, to be paid to either party in gross or otherwise as it shall deem just and reasonable, having regard to the ability of either party and the character and situation of the parties, and all the other circumstances of the case.”

The amount of alimony or spousal support will vary with the disparity of the parties incomes and the length of the marriage.

Alimony can be awarded for a term of years and/or upon the death or remarriage of the parties.

Alimony is always modifiable unless the parties agree to make it non-modifiable.

Factors used to determine if alimony is appropriate

There are eleven factors taken into consideration when determining if Alimony in Michigan should be awarded.  The eleven factors are as follows:

  • The past relations and conduct of the parties.
  • The length of the marriage.
  • The ability of the parties to work.
  • The source of and amount of property awarded to the parties.
  • The age of the parties.
  • The ability of the parties to pay alimony.
  • The present situation of the parties.
  • The needs of the parties.
  • The health of the parties.
  • The prior standard of living of the parties and whether either is responsible for the support of others.

Citing: Parish v. Parish 138 Mich App 546 (1984)

The Law – Cases and statutes on alimony in Michigan

Michigan Compiled Laws (MCL), Michigan Court Rule (MCR), and the Michigan Courts provide the statutory and legal authority for spousal support in Michigan.

Sources:

MCL 552.23(1):  The court may award spousal support as is just and reasonable if the property award is insufficient for the suitable support of either party.

MCR 3.211(B)(4):  If spousal support is not granted, the judgment must either reserve the question or state that neither party is entitled to spousal support.  If the Judgment is silent, the is is reserved for possible later consideration.

Parish v. Parish 138 Mich App 546 (1984),  Factors to be considered in awarding alimony or spousal support.

Uniform Spousal Support Order:  FOC 10b (with Friend of the Court Services) and FOC 10c (without Friend of the Court Services).  Any provisions regarding spousal support (alimony) must be prepared on a Uniform Support Order.  The Uniform Support Order governs if the terms of the judgment or order are in conflict.

Uniform Interstate Family Support Act.  This act permits enforcement of an income withholding order by filing it with the State.

Interstate Income Withholding Act.  MCL 552.671 et. seq. Only the FOC can request income withholding from another jurisdiction.

Past relations and conduct of the parties.

Sparks v Sparks, 440 Mich 141 (1992):  The Court must make findings on each spousal support factor. The conduct of a party during the marriage may be relevant in an award of spousal support or alimony.

Fault.

Hanaway v. Hanawy, 208 Mich App 278 (1995):  Fault is only one factor and should not be assigned disproportionate weight.

Johnson v Johnson, 346 Mich App 418 (1956):  The trial court is in the best position to determine the extent to which each party’s conduct contributed to the breakdown in the marriage in evaluating alimony and spousal support claims in Michigan.

The length of the marriage.

Parish v. Pairsh, supra:  The legnth of the marrage is a relevant factor in evaluating alimony and spousal support claims in Michigan.

Ability to work.

Sullivan v Sullivan,  175 Mich App 508 (1989):  A temporary award of alimony or spousal support in Michigan is not fair when there is serious doubt about a party’s ability to support herself after an award of temporary support.

Goal is to balance incomes.

Magee v Magee, 218 Mich App 158 (1996):  The objective of an award of spousal support or alimony in Michigan is to balance the incomes and needs of the parties in a way that will not impoverish either party.

Age of the parties.  

Demman v. Demman 195 Mich App 109 (1992):   Age is a factor in determining spousal support or alimony awards in a Michigan divorce.

An un-exercised ability to earn income.

Knowles v Knowles, 185 Mich app 497 (1990):  The ability to pay spousal support includes the un-exercised ability to earn income if income.

Health of the parties.

Lesko v Lesko, 184 Mich App 395 (1990):  Health is relevant to the ability to work and to the person needs of a spouse seeking spousal support or alimony in Michigan.

Modification of Michigan alimony or spousal support:  

The statutory right to modify spousal support is set forth in MCL 552.28 but does not address proper cause or change of circumstances.  The requirement for a change of circumstance to modify spousal support is found in case law.  Obtaining new (or better) employment, collecting social security or otherwise improving his/her financial condition has been held to be a sufficiently changed circumstance to modify spousal support.

Schaeffer v. Schaeffer, 106 Mich App. 452, 260 (1981):  A modification of an award of alimony under this section [552.28] may rest only upon new facts or changed circumstances arising since the judgment which justify revision.

Graybiel v. Graybiel, 99 Mich App. 30 (1980):  The party moving for modification of spousal support has the burden of showing sufficiently changed circumstances to warrant modification.

Crouse v. Crouse, 140 Mich App 234 (1985): a former spouse’s continued cohabitation (e.g. with a boyfriend/girlfriend) is not a sufficiently changed circumstances to warrant modification of spousal support.

Gates v. Gates, 256 Mich App 420 (2003):  The burden is on the moving party to show a change of circumstances using the facts and circumstances existing at the time of the request.  A presumptive alimony term does not shift the burden of proving change circumstances to the non-moving party.

Ackerman v. Ackerman 197 Mich App 300 (1992):  The receipt of disability benefits under an insurance policy was a sufficiently changed circumstance to warrant modification of spousal support.

Oknaian v. Oknaian 90 Mich. App. 28 (1979); Hall v. Hall, 157 Mich App 239 (1987):  Alimony in gross (a lump sum or periodic payment that does not terminate upon a contingency) is generally non-modifiable regardless of changed circumstances.

Non-modifiable alimony.

Staple v. Staple, 241 Mich. App. 562 (2000), Parties may agree to waive the statutory right to petition the court for modification of alimony notwithstanding a change of circumstances.  The parties must clearly and unambiguously set forth that the parties (1) forgo their statutory right to petition the court for modification and (2) agree that the alimony provision is final, binding and non-modifiable.

Remarriage.

Ackerman v Ackerman 163 Mich Ap 796 (1987):   Remarriage in and of itself is insufficient to terminate spousal support, however it is pertinent.

Cohabitation.

Crouse v Crouse 140 Mich App 234 (1985):  Cohabitation with an unrelated person does not constitute a de facto marriage and justify the termination of Michigan alimony or spousal support..

Change in need.

Aussie v Aussie, 182 Mich App 454 (1990):   Changes in need including the loss of a home, legal expenses, and unforeseen costs are sufficient factors to extend the period of Michigan alimony or spousal support.

Change in ability to pay.

 Boyer v Boyer, 30 Mich App 623 (1971):   Ability to pay is relevant to a determination if Michigan alimony or Michigan spousal support should be increased or decreased.

Education is key.  I encourage you to read the articles on this website and ask questions.

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Articles on Alimony in Michigan

Michigan divorce law update: Alimony and tax considerations.

Michigan divorce law update: Alimony and tax considerations.

Alimony guidelines in Michigan

Fault and Alimony in Michigan

Non-modifiable alimony

Support security – Securing the future payment of child support and alimony

Michigan Alimony and Spousal Support video

Support security – Securing the future payment of child support and alimony

Support security

 

 

 

 

Resources and Answers to your questions

THE BASICS THE DETAILS THE LAW ARTICLES VIDEOS

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We are here to help you navigate this journey by focusing on you goals.  If you have any questions concerning any aspect of the law, let my know.  Our Michigan divorce attorneys are here to help and so am I.  My direct line is 248-399-3300 or toll free 877 YOUR FIRM. By:  Daniel Findling  (c) 2016 Findling Law The Divorce Guy, Michigan Divorce Attorneys and Specialists www.thedivorceguy.com www.divorceforum.com 877-YOUR FIRM

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