Family Law on the UBE / MEE - How to Determine Whether Temporary or Permanent Spousal Support is Warranted

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Temporary v. Permanent Spousal Support - When to Apply Each?



Econ Issues Around Terming a Marriage –
Within the confines of Family Law on the UBE, there are a few economic issues with respect to the termination of a marriage.  One such economic issue is that of alimony which can be defined as. a husband's or wife's court-ordered provision for a spouse after separation or divorce.  It is also synonymous with “maintenance” or “spousal maintenance.” 

One of the easier issues on a Family Law essay, determining when temporary or permanent spousal support is warranted per the fact pattern is rather straightforward in theory, but a bit more difficult in a practical application.  It is imperative to fully understand the parameters of each, and know when to apply temporary or permanent support.  BAR EXAM NOTE – Both will never be permissible.  Per a given fact pattern, a spouse will be awarded either temporary or permanent support.

There are three issues to consider when thinking about spousal support: 1) what type of support is warranted while a divorce proceeding is pending; 2) what are the various types of support and how are they defined; and 3) how can we modify, terminate, and/or enforce a Court Order.

1 - Temporary Maintenance While the Case is Pending -
Spousal support while a divorce proceeding is pending is certainly permissible.  As for the formula to calculate same, it is based on income of the two spouses and yields a presumptive award.  There are a few factors the court will consider when determining the amount of case-pending temporary support.  The court can consider A) marital fault B)age and health of the spouses and C) spousal earning power.                      

2 – Types of Spousal Support -
In short, there are four forms of Spousal Support (aside from the temporary support while the case is pending, see above).  A) Permanent periodic spousal support; B) Rehabilitative spousal support (temporary); C) Lump sum; and D) Reimbursement spousal support. 

A – Permanent Spousal Support - Permanent spousal support continues until the death of the payor, the death of the recipient, or the remarriage of the recipient. In some cases, it can continue after the remarriage of the recipient. Permanent spousal support can be adjusted based on a change of circumstance. An adjustment in the amount of support depends on any financial changes in the life of the payor of the recipient. If the recipient obtains a job with a higher salary, the payor can petition the courts to modify the spousal support so that he/she is paying less. If the recipient suffers a loss of salary or a traumatic medical problem, he/she can petition the courts and request an increase in support.

B - Rehabilitative spousal support -  Awarded for a short period and is meant to help a spouse “rehabilitate"—that is, obtain the job training, professional experience, or education that would allow him or her to become self-sufficient. It's also given to the stay-at-home parent of small children so that he or she may stay home until the children reach school age.

Rehabilitative spousal support is normally set for a fixed period. The parties can agree to a timeline or the courts can mandate a timeline. The court may look at the facts of a case and determine if spousal support should be continued, discontinued, or the amount changed.

C - Lump-sum alimony - Also known as alimony in gross, this type of spousal support involves a fixed cash payout, remitted either in a single transaction or in installments. While lump-sum alimony allows both parties to cut ties more quickly, this type of spousal support can't be modified down the road. This sets lump-sum alimony apart from the other types of "periodic" spousal support, as the payments aren't contingent upon either party's financial situation or marital status.

D - Reimbursement spousal support/alimony - Reimbursement Spousal Support is paid so that a spouse can “reimburse” the other spouse for certain expenses incurred by the other. For example, if you're married to a doctor and you worked and help put him/her through medical school, you may be able to obtain reimbursement spousal support that will pay back the money you spent to help build your spouse’s career. The payments can be made in a lump sum or over a period of time.

Type
Description
Modifiability
Termination
Permanent
Paid regularly FOR LIFETIME of recipient / Appropriate if the receiving spouse is unable to maintain an income on their own.
Modifiable upon substantial change in circumstances.
Terminates upon the death of either spouse or the remarriage of the recipient spouse.
Rehabilitative
Paid regularly for a LIMITED period of time / paid until the receiving spouse is able to earn a living, even if not commensurate with what they are accustomed to.
Modifiable upon substantial change in circumstances.
Terminates upon the death of either spouse of the remarriage of recipient spouse.
Lump Sum
Payable all at once or in series of payments.
Non-modifiable
Survives the death of either spouse.
Reimbursement
Payable all at once or in a series of payments.
Non-modifiable
Survives the death of either spouse.


3 – Modification, Termination, Enforcement  –

For modification, whether the spouse paying or receiving the support, said spouse can go back to court and have the award modified.  That said, must show evidence of substantial change(s) in circumstances.  BAR EXAM NOTE – You are unable to modify past due payments.  If a payor is in arrears, he or she will continue to owe the past due amount, even if a substantial change in circumstances has occurred. 

As concerns termination, the award will generally terminate on the death of either party and the parties can contract around this rule via a separate agreement.  A spousal support award may also terminate upon remarriage and/or new cohabitation.

Finally, with respect enforcement, if the “checks stop coming in?” A court has the power to seize property, enter a wage reduction order, take away a drivers license, take  a professional license away, or potentially jail someone for contempt of court.

4 – CROSSOVER between alimony within Family Law and the Spendthrift Provision within the subject of Trusts –
            Spendthrift language is also intended to prevent creditors from going after trust funds to pay what a beneficiary owes them. To be effective, the trust must contain very specific language.  Under most states’ laws, assets held in trust must be used to pay certain kinds of obligations, including child support as well as support of a spouse or former spouse (among other exceptions). 

            For example, a Delaware woman went to court seeking the spousal support due her under a separation agreement with her husband, who was the beneficiary of a spendthrift trust. The court concluded that she was not a "creditor" as defined in the state statute allowing spendthrift trusts, and that she was entitled to funds from the trust to pay her what she was owed.

            Keep this in mind if we see a UBE essay containing both Family Law and Trusts (a possible crossover of subjects). 

Should you have any additional questions about spousal support, child custody matters, Family law in general or another area of the UBE, please do not hesitate to contact us at PassYourBarExam@gmail.com


GOOD LUCK!




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