It is easy to get lost in the trees when you should be focusing on the forest. However, we recognize that some people like the nitty gritty details which is why we created the nitty gritty details series. The nitty gritty details series will focus on the technical side of Michigan divorce, custody and support laws. Over the years we have published hundreds of articles on Michigan divorce and child custody laws addressing both general and highly specific topics.
In this edition, we will focus on the nitty gritty details of Michigan alimony and spousal support laws. If you have questions or are seeking representation, you can reach us by phone, email or by clicking on the “Take the Next Step” button.
Alimony is the same as Spousal Support and 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.
The source of Michigan Alimony law:
The statutory authority for a court to issue a Michigan alimony award is found in MCL 552.23(1) and provides:
(1) Upon entry of a judgment of divorce or separate maintenance, if the estate and effects awarded to either party are insufficient for the suitable support and maintenance of either party and any children of the marriage who are committed to the care and custody of either party, the court may also award to either party the part of the real and personal estate of either party and spousal support out of the real and personal estate, to be paid to either party in gross or otherwise as the court considers just and reasonable, after considering the ability of either party to pay and the character and situation of the parties, and all the other circumstances of the case.
The most cited case on alimony is Parish v. Parish. The Parish case sets forth a number of factors courts should consider in determining if alimony should be awarded. These factors are:
1. The past relations and conduct of the parties.
2. The length of the marriage.
3. The ability of the parties to work.
4. The source of and amount of property awarded to the parties.
5. The age of the parties.
6. The ability of the parties to pay alimony.
7. The present situation of the parties.
8. The needs of the parties.
9. The health of the parties.
10. The prior standard of living of the parties and whether either is responsible for the support of others.
11. General principles of equity.
General overview of Michigan alimony with answers to your questions.
Michigan alimony case law. The nitty gritty details.
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.
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.
Michigan alimony and Taxes. The nitty gritty details.
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:The payments must be made in cash; (e.g. providing a car is not deductible);
- The payments must be to a spouse or on behalf of a spouse;
- The payments must be made pursuant to a divorce or separate maintenance instrument;
- The payments must not be designated as non-qualifying by the payor or non-taxable to the recipient;
- Spouses may not be members of the same household;
- The payment must terminate at the recipient spouse’s death;
- Spouses may not file a joint return; and
- The payment cannot constitute child support.
Source: Internal Revenue Service – http://www.irs.gov/taxtopics/tc452.html
More Nitty Gritty Details of Michigan Alimony law
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By: Daniel Findling