Two-Fold Test for Alimony

Many people are reluctant to move forward with a divorce because of the financial impact that it could have. Not only are there costs related to attorney’s fees and court fees, but there is the division of marital assets and possible alimony. For some, it feels financially safer to stay married. However, many people have misconceptions about the divorce settlement process and what exactly the financial impact will be. Of course, the best way to get an accurate idea of how a divorce could affect you and your assets is to talk directly to an attorney who can get a full idea of your financial circumstances and marital situation.

Determining Need for Alimony

Alimony, or spousal support, is not awarded in all cases. Spousal support is only awarded if there is a need for it. In determining need, the court will look at each spouse’s earning potential as compared to their monthly financial needs. If one of the spouse’s has a degree or license that would allow them to make a certain amount, but they are not currently using it or are earning less than they could be, the court may impute a higher earning potential on them. For instance, if your spouse is a licensed attorney but they are working as an artist or stand-up comedian, the court may impute the amount they could reasonably be making as a lawyer, since you are not obligated to suffer financially for their career preferences.

If their actual or imputed income exceeds their living expenses and financial needs (taking into account the marital standard of living), then they are not deemed in need of receiving spousal support and the court will not award it unless the couple agrees to it mutually on their own and asks the court to enforce it as part of the divorce settlement agreement. If, on the other hand, the court determines that there is a need for alimony, they proceed to determine the amount.

Looking at our model family, both spouses have a strong income independent of one another. It is possible that the judge would not find a need for alimony based on the fact that both spouses have the ability to independently maintain a lifestyle comparable to the other that they were enjoying while married. Unless one of the spouses can provide proof of need, it is unlikely that alimony will be awarded.

Determining the Amount of Alimony

If it is determined that there is a need for alimony, there is an Illinois statute that provides a formula for calculating the amount of spousal support that should be paid. If the combined gross income (income before taxes and expenses) is less than $500,000 annually, then spousal support payments will be 33% of the higher-earning spouse’s salary minus 25% of the lower-earning spouse’s income, with the caveat that this amount cannot exceed 40% of the combined total income. Of course, this does not apply if you and your spouse have a prenuptial or postnuptial agreement that has terms dictating how your assets will be distributed and whether spousal support will be paid and in what amount. In that case, the terms of the agreement will control.

Contact Glasgow & Olsson Divorce Attorneys

If you are considering divorce, alimony is an important consideration that can be discussed with a lawyer. Contact the experienced divorce attorneys at Glasgow & Olsson in Schaumburg, Illinois today to schedule a consultation and make sure that you get a fair divorce settlement.

This entry was posted in: 

And tagged: