Living

FLYING SOLO: Alimony is unpredictable

Question: I have been thinking about divorcing my wife for a long time, but have been biding my time until I felt comfortable with what I would have to pay as alimony, if anything. Based on talking to acquaintances who have "been through it," and reading quite a bit, I have come to the frightening conclusion that there is no predictability at all. I wanted to know if you can tell me why alimony can't be set automatically like child support by using guidelines so there can be some consistency.

Answer: You have learned in a relatively short time what some folks never figure out: There is no way to compare one situation to another, even if the facts are the same, because the amount of alimony granted comes down to the judge's discretion based on the facts presented in court to him or her. In a nutshell, Family Court judges hear the evidence from each side, judge the credibility of the witnesses, and then apply the facts they believe are true to the criteria established by the legislature in their state of residence.

While there may be idiosyncrasies from state to state, the most common alimony criteria may include the following non-exhaustive list: 1) economic need versus economic ability to pay; 2) length of marriage; 3) ages and health of each spouse; 4) prior standard of living; 5) comparison of educational levels, earning capacities and ability to work; 6) whether there are dependent children; 7) time and expense required for education or retraining; 8) economic contributions and waste; 9) income from property division; 10) fault; and 11) other factors deemed appropriate.

On the other hand, while each state legislature has passed child support guidelines with the ostensible purpose of making child support awards more uniform and predictable, the guideline models used from state to state are far from standardized given the fact that some use an "adjusted gross income" model while others use "straight gross income" or "net income" in making the child support calculation. Then credits for payments like health insurance and day care are given to the parent who pays the same.

Contrary to your assumption, child support guidelines are not consistent for all litigants. For example, there may be deviations from the norm due to circumstances that may not be adequately covered by the guidelines, such as educational expenses for spouse and children. Also, the guidelines may not apply to large and high-income families, and may not take into consideration support to children from other relationships, high medical and dental expenses for a child or parent, or employment benefits not shown on tax returns, such as contributions to retirement or a company car. And, when there is either a joint or a shared physical custody, the guidelines probably won't apply.

Bottom line: Child support guidelines were enacted more for the average employee than the higher-wage earner or business owner. And while presumed to be fair, most states allow the judge to vary the award if the result would be unjust. At the same time, when setting alimony, the judge also uses his or her discretion. So, in the final analysis, there may not be much difference, predictability-wise, in setting alimony and child support amounts. This means that if you decide to jump into the pool, you take your chances.

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