How Much Alimony Is Awarded in Mississippi Divorce

This is probably the section that we should have put at the top, since this is the question we’re always asked. How much alimony can I get? — or, How much alimony am I going to have to pay?

Alimony for Support vs. Alimony To Transfer Assets

There are two basic reasons that alimony is awarded in Mississippi:

1. To support the wife (i.e., to help her meet her financial needs); and

2. To transfer assets to the wife (i.e., she might not even need the money).

The first reason is self-explanatory. The second reason isn’t so much “alimony” (although that’s the term we use) as it is a distribution of property.

Recall that one example of using alimony to distribute property is where the only asset of any considerable size is the husband’s business. If you don’t want to order him to sell the business (and why would you), then the judge might award 100 percent of the business to the husband but then order him to pay Lump Sum Alimony (as property division) in the amount of 50 percent of the value of the business.

It doesn’t matter whether the wife needs the money or not. The purpose isn’t to provide for her support; the purpose is to transfer assets from one spouse to the other, in this case so that each spouse will receive an amount equal to 50 percent of the whole. Reimbursement Alimony, which we described in a previous section (e.g., the wife put the husband through professional school and then he divorced her), is another example of when the purpose of alimony is to transfer assets rather than to help meet the recipient-spouse’s financial needs.

When the Purpose of Alimony Is To Distribute Property

Here’s a very brief aside, and then we’ll ignore it: Judges don’t have to divide the marital estate 50-50. They can award one spouse 55 percent or 60 percent or even more.

OK, now that we’ve gotten that idea out of the way, let’s assume for the rest of this discussion that the judge has decided to divide assets 50-50. That’s how they usually do it. If the purpose of the alimony award is to distribute property, then it’s pretty easy to calculate how much the alimony is going to be: whatever it takes to get to 50-50.

Here’s a simple example. Suppose there are only two assets to divide:

1. $5,000 shotgun

2. $25,000 painting

There’s really no way to divide those two assets evenly. Either each spouse gets one asset, or else one spouse gets both assets, while the other gets neither.

If one spouse gets the painting and the other gets the shotgun, then the spouse with the painting has to pay $10,000 to the other spouse to make the division come out even. That payment can be termed Lump Sum Alimony (as property division). Obviously, the amount of the award is whatever is needed to make the property division come out right.

When the Purpose of Alimony Is To Support the Recipient

Here’s how alimony is calculated when the idea is to support the recipient spouse.

1. Can the husband afford to pay any alimony? If the husband can barely meet his own reasonable needs and isn’t intentionally earning less than he is reasonably capable of earning, then, by definition, he lacks the ability to pay alimony. A husband will not be ordered to pay what he cannot pay, even if the wife is in desperate need of alimony. Frankly, this is the situation that judges face day in and day out — parties whose legitimate expenses far outstrip their ability to pay those expenses. [If the husband is intentionally earning less than he is capable of earning, then answer this question according to his earning capacity rather than his earnings.]
   If the answer to this question is NO, then stop here. If yes…

2. Does the wife need alimony? Taking into account the wife’s income, her earnings capacity, and the assets that she already has (including what she received in the division of marital property), does she still need alimony? Of course, need is a relative term. Generally speaking, need in a short-term marriage is understood to mean the amount necessary to avoid destitution. Need in a long-term marriage is generally understood to mean the amount necessary to maintain the lifestyle to which the wife has become accustomed. The concept of need is incredibly fluid; everyone defines need differently. It’s the judge’s definition that counts, so does the judge think that the wife needs alimony? If the answer to this question is NO, then stop here. If yes…

3. How does the husband’s ability to afford alimony compare with the wife’s need for alimony? This is where the rubber meets the road. Count on the wife’s attorney to point out that, even after paying all of his reasonable bills, he still has enough income “left over” that he can afford to pay alimony. If the husband earns $12,000/month, and his bills only add up to $7,000/month, shouldn’t he have to pay $5,000/month in alimony?
   Naturally, the husband’s attorney will point out that his client doesn’t earn $12,000, he earns $10,000; and his bills aren’t $7,000, they’re $9,000; and the wife can earn enough to cover all of her bills anyway, which (he’ll say) are vastly inflated.
   This is the dance where both sides argue whether the husband has “excess income” (his income and earnings capacity exceed his bills), whether the wife has “excess need” (her reasonable bills exceed her income and earnings capacity), does the asset division alleviate “need,” and what part other factors play (e.g., who caused the breakup of the marriage; was this a short-, medium-, or long-term marriage; how old are the spouses, etc.).

The Effect of Social Security on Alimony

When the recipient begins drawing Social Security, she has an option on how the amount of Social Security payment should be calculated. (1) She can base the calculation on her earnings history; or (2) if she was married to her husband for at least 10 years and has not remarried, she has the option of basing her Social Security on his earnings history — but she only gets 50 percent of the resulting Social Security benefit.

Under either option, the husband’s Social Security benefit is not affected in the slightest.

Recent appellate cases have suggested that if the husband chooses this second option, then the husband can reduce his alimony obligation by the amount that the wife receives in Social Security. Similarly, if a wife receives a benefit from the husband’s SSDI, his alimony obligation can likewise be reduced.

But the reduction is not automatic. The husband still must apply to the court to effectuate this reduction. In other words, the husband cannot simply reduce the amount of his alimony check without first obtaining court approval.