“Calculating” Alimony
So far, we haven’t given you any numbers or formulas that you can use to calculate the likely alimony award in your case. That’s because there aren’t any formulas. Your judge doesn’t have a formula, either, which is why this post title says “Calculating” in quotes. But the analysis outline in the previous section, where the wife’s needs are compared against the husband’s ability to meet those needs, is where the judge will start.
He is required to engage in a more in-depth analysis of 12 factors, which are called the Armstrong Factors, after a Supreme Court case (Armstrong v. Armstrong), which listed the factors for the first time. Here they are:
The parties’ income and expenses
The parties’ health and earning capacity
The needs of each party
The obligations and assets of each party
The length of the marriage
The presence or absence of minor children in the home, which may require childcare
The parties’ ages
The parties’ standard of living during the marriage and at the time support is determined
Tax consequences of the spousal support order
Marital fault or misconduct
Dissipation of assets by either party
Any other factor that should be considered
We’ve covered most of these already, but let’s take a look at a few items more closely.
“Judges, as a class, display, in the matter of arranging alimony, that reckless generosity which is found only in men who are giving away someone else’s cash.”
Earnings Capacity
This comes into play in a couple of different ways. Judges often notice how a husband will have years of record earnings, only to report that his income tanked in the year before the divorce. How much the husband can really earn is often a bone of contention. Second, where the wife has not worked outside of the home for years, it’s not unusual for vocational experts to testify on the subject of (1) how much she could earn if she re-entered the workforce today; and (2) how much she could earn if she got a degree, a professional license, or some other training to increase her earnings capacity. The Big Idea, of course, is to argue that even if the wife’s earnings are low now, in a few years the wife is capable of earning enough that she won’t need any financial support from her ex-husband.
Length of Marriage
Generally speaking, the longer the marriage, the more likely the judge is to award substantial alimony. One expert on the subject calculated that if the marriage lasts at least 20 years, the likelihood of an award of permanent, periodic alimony increases substantially, but if it lasts less than 10 years, the same award is highly unlikely.
Your results may vary.
Minor Children
In deciding whether to award alimony, the judge is supposed to take into account any award of child support that he has made. You can read more about child support awards in our Ultimate Guide to Child Support. The point we are making here is that when the wife is raising the children post-divorce, the judge will consider the overall financial package (kids’ expenses and child support included) when trying to calculate alimony.
Standard of Living
This, and the related concept of need, are the most idiosyncratic issues that a judge will consider, which is a key reason why predicting a judge’s alimony award is so difficult. There are people in Mississippi living on far less than $20,000/year, so how much do you really need? Do you need to upgrade from mobile home to apartment to rent house to house ownership to dream house? We can follow the same spectrum from a $3,000 used car to a brand-new luxury SUV. How nice a car do you really need?
This is where the idea of Standard of Living is so helpful. If the parties have been living in a dream house and bought new cars every few years, it’s going to be hard to convince the judge that either of them should, post-divorce, have to live in an apartment and drive a car with 300,000 miles on it. Yes, people do live in apartments and drive old cars, but in this case, that’s not the parties’ standard of living. The point is, to the extent that resources allow, judges generally try to make their awards so that each party can maintain approximately the same standard of living as before the divorce.
Marital Fault or Misconduct
This is a tricky issue. Judges are instructed to avoid using alimony to punish a spouse who is guilty of marital fault or misconduct. But they are allowed to take marital fault into account. We’re not sure how to do one without the other, but that’s what the law says.
The law books also say that a spouse who is guilty of adultery is not to receive alimony, except to the extent necessary to avoid destitution. That prohibition may not be as sweeping as it sounds, since most parties agree to a divorce on the basis of Irreconcilable Differences (no-fault), even if one spouse has committed adultery. You can read more about that in our Ultimate Guide to Divorce.
We’ve had any number of conversations with innocent spouses who were convinced that the judge was going to give them anything they wanted because of what the guilty spouse did. Our experience is that judges are far more circumspect, especially where the evidence is less than clear, and the misconduct is no more egregious than what the judge is used to seeing in the courtroom.
Dissipation of Assets
Dissipation of Assets refers to a spouse using marital assets in a way that the judge does not approve of. The classic examples are spending on a mistress and significant gambling.
Where one spouse has dissipated significant marital assets, the judge is far less likely to relieve him of the alimony obligations that would otherwise be imposed if the assets were still unspent. In other words, a husband cannot spend money on mistresses and riverboats and then expect the judge to reduce his alimony obligation because he doesn’t have the money any more.
