What Exactly is Alimony in Michigan?
Alimony in Michigan is a term used to refer to an award of spousal support or maintenance. Pursuant to MCL 552.23, Michigan Courts have the ability to award support "either from the husband or the wife, for the support of the other during life, or to award the wife all necessary articles for her support out of the husband’s estate, according to his ability." This of course is just the recommendation of the law from the 1857 compiled laws of Michigan. These words may not precisely apply in today’s cases, but the general concept remains the same. Alimony is given to allow for a spouse who would otherwise be unable to fairly maintain the standard of living enjoyed by couple during their marriage.
Every case is different and certainly every judge has his or her own preference when it comes to awarding alimony. However, the law in Michigan sets out some factors for consideration. Most Michigan Judges will consider the following:
Based on these factors and considerations it becomes up to the court to determine whether an award of alimony is appropriate and if so the type and amount. There is no law that states you "have to pay alimony." But, as with many things in life, it all comes down to numbers. Once the numbers are crunched a judge will make a determination. Alimony is available on short term and long term bases. Short term is considered a rehabilitative award that will allow a supported spouse to become self-sufficient. Long-term is awarded to ensure the spouse does not fall into poverty. Thus a judge may look at what it would take to keep the supported spouse in the same housing, ensure child care payments are met, etc . The goal is to make sure the supported spouse is able to transition from married life to single life without losing everything that they have.
Judges are to use their discretion. One judge could look at a case and determine that a long term award of $1,200 per month for the next 10 years is appropriate based on the length of the marriage, the spouses’ work history, etc. Another judge may feel that a short-term award of $500 per month for 3 years is appropriate. Each case is different, but Michigan Judges must be guided by the substantial and compelling interest standard. Meaning a judge can not decide to award alimony just because he or she believes it is the right thing to do. The judge must consider the factors as set out above and make a determination based on those factors. This leads many lawyers to believe that the Michigan Alimony statute and case law involving spousal support is too vague because it allows for judges to use so much of their discretion in awarding alimony. In the past many attorneys have encouraged clients to get as much alimony as possible because it was often a non-modifiable form of alimony. However, in 2018 the Michigan courts made a significant change to alimony in Michigan. The new prohibition on lifetime awards of spousal support means that some alimony agreements may need to be revisited. Therefore, while alimony in Michigan may still be up to the judge’s discretion, it is worth speaking with an attorney to determine what amount of alimony may be appropriate for your situation.
Alimony Considerations
Factors Influencing Alimony Decisions in Michigan
When determining whether or not to award alimony, Michigan courts will consider a number of factors. In addition to the duration of the marriage, the Court will consider: the ability of the parties to work, the source and acuity of property awarded to the parties, the age of the parties, Michigan’s alimony formula, the ability of the parties to pay alimony, the parties’ needs, the parties’ past relations and conduct, the parties’ abilities to cooperate with each other and any other factor that the Court should consider. The duration of the marriage will most likely impact the amount and duration of alimony requested. Where the parties were married for a shorter period of time, Courts will usually only award short-term alimony. Short-term alimony, however, can be used to give the parties time to adjust to their new financial circumstances. For example, if the payor is required to pay alimony to the recipient, could that impact his ability to pay a new mortgage payment and if so, would it delay the payor from purchasing a new home if the parties’ home was sold? For that reason, the Court may award short-term alimony to allow the payor the ability to save some money for a down payment on a new home. Moreover, Courts like to maintain the status quo of the parties in an effort to allow them to maintain their previous lifestyle. For instance, if a party was used to getting up in the morning and having coffee and making breakfast for the children before bed time, the Court may temporarily order that party to spend that extra hour each night after work with the children to continue their evening routine. This may also positively affect the parties’ relationship thus reducing potential conflicts in the future. Similarly, the income of the parties will be used to determine the parties’ needs. The Court will analyze how much income the parties have and how that income will be used post-divorce. For instance, while the payor may be required to pay alimony, the Court will also consider how the payor will afford to pay his/her own mortgage (if they were to buy one) and/or save for retirement. As such, the Court may reduce how much alimony the payor must pay. Finally, special circumstances will also be analyzed. For instance, if the recipient of alimony is not working, had to stop working to take care of the children during the marriage, or was out of the work force for a long time during the marriage, then some courts will require that the recipient looking for employment before reducing alimony. If the Court feels that the recipient could seek employment, even though the recipient was out of the work force for a number of years, the Court may require the recipient to look for work, reducing or terminating alimony if the recipient failed to do so.
How Long is Alimony Paid in Michigan?
Initial alimony awards in Michigan typically don’t have an expiration date, but rather are reviewed on a yearly basis (or worse) until one of the parties dies or there is a change in one of the party’s circumstances (loss of job, etc). While alimony awards can and do last indefinitely, the court has a fair amount of discretion when determining the length of time that support should be paid. Outlined below are several common scenarios that may sway a judge to either an extension or reduction of alimony time periods.
While an alimony order can last indefinitely, alimony awards do frequently have a time limit. In Cortes v. Cortes, 222 Mich.App 190, 194; 564 NW2d 200 (1997), the court held that the duration of the alimony award was appropriate in light of a number of factors, including "the parties’ ages, the length of marriage, the disparity in adjoining income, and the length of the defendant’s rehabilitative period." Alimony awards that are limited to the same length as the marriage are common, though not always appropriate. Another option is to require the lesser earning spouse to utilize their share of retirement payments, for example, and then receive maintenance payments thereafter. Past decisions by the court have been inconsistent on the issue of whether or not alimony is appropriate when one party is not working, but at least the situation generally provides options for the judge to consider, and in Cortes the party receiving alimony did not need to be employed to receive support.
While the issue of remarriage or cohabitation is often at the core of many alimony discussions, courts throughout Michigan generally favor a presumption that remarriage will reduce the need for alimony by the spouse who was previously supported. In Herring v. Herring, 217 Mich. App. 674, 687; 552 NW2d 673 (1996), the state supreme court offered that "Remarriage is properly considered among the relative circumstances of the parties as it is sufficient to foreclose alimony or support of any type and may call into question whether an ex-wife deserves support from a former husband." That said, the courts also have the discretion to determine if the situation warrants the continuation of an alimony award even if a party is remarried. In Reitz v. Reitz, 211 Mich.App. 619, 623; 536 NW2d 579 (1995), the court wrote "…we find that the trial court erred in holding that the defendant’s remarriage to [a wealthy individual] could never result in a reduction of alimony. Without discounting the trial court’s ability to make a discretionary ruling, in our opinion, a finding of an increase in the plaintiff ‘s financial ability because of the defendant ‘s remarriage to [a wealthy individual] — or a demonstration by plaintiff that he will assume greater financial responsibility for the children as a result of defendant’s new circumstances — could clearly demonstrate a substantial change of circumstances warranting a modification of alimony."
Methods for Calculating Alimony
A variety of different methods may be used to approximate the amount of alimony; a "rule of thumb" is to take 15 to 30 percent of the higher income spouse’s gross income, less her or his own child support obligation and expenses, and adjust that figure to reflect other factors such as standard of living of the parties, length of marriage, and age, health, and needs of the receiving party. In the past, the "Rule of Thumb" was commonly used by courts in determining alimony amounts and courts have tended to base alimony awards on it. However, in Young v Young,[1] 250 Mich App 99, 100; 645 NW2d 215 (2002), the Court of Appeals held that "[l]awyers will be disappointed to know that the ‘Rule of Thumb’ is not the law in Michigan." But although Young specifically stated that the "Rule of Thumb" is not the law in Michigan, it did not prohibit the trial judge from considering it, or other appropriate guidelines, when awarding alimony.
Instead, Michigan law governing alimony states: The decision to award alimony is left within the large discretion of the trial court. An award of spousal support is based on equitable principles, and, therefore, review of the trial court’s decision is whether the trial court abused its discretion.[2] To help the court in determining if an ‘abuse of discretion’ occurred in determining an alimony award, Michigan’s friend of the court office has a formula to maintain equity with respect to alimony awards. This formula allows a typical formula for determining the alimony amount: The alimony award per month is computed as follows: (45% of Husband’s Gross Income) – (30% of Wife’s Gross Income) – (Child Support Obligations) = Monthly Award. Since the above formula is meant to maintain equity with respect to alimony awards, it is not typically accurate. It is merely a guideline. Alternatively, if prior to establishing a formula the couple had a fixed ratio of income used for multi-year payments, that ratio of the husband’s gross income to the wife’s gross income may be used as a guideline for assistance in determining alimony.
Alimony Modification
Alimony Orders Can Be Modified By the Court
In Michigan, alimony is not a lifetime right, and either party to an alimony agreement may seek a modification of an existing alimony obligation. A court retains continuing jurisdiction over the circumstances of the parties after the entry of a divorce decree, so long as the decree itself reserves the right for the court to do so. As discussed above, in the event of a divorce, alimony is awarded by court order in a divorce judgment or stipulated separation agreement. To the extent that the parties enter into a contract containing alimony provisions , parties to the agreement may be able to modify their agreement in accordance with contract law.
Each of the following items may constitute a change of circumstances sufficient to justify a modification of an alimony order: A court’s jurisdiction to modify an alimony order is limited to circumstances that arise after the entry of the judgment from which modification is sought. Such a modification is only proper if the evidence offered demonstrates that the circumstances of the parties have changed since the entry of the earlier judgment.
Enforcement of Alimony Agreements
If a party fails to comply with an alimony order or agreement, the other party has options for the legal relief. The failure to comply with an alimony obligation may be considered a contempt of court situation. It is crucial to note that the right to file a contempt motion should not be done lightly. While Michigan courts strongly enforce court ordered spousal support (as opposed to family support which may or immediately be enforced through wage garnishment), the enforceability of a spousal support obligation largely hinges and the specific language of the spousal support order.
In Michigan, orders of spousal support can only be modified or terminated based upon a change in circumstances arising since entry of the spousal support order that causes substantial hardship. However, the enforceability of a spousal support order imposed by agreement is much stronger. Generally, most spousal support agreements expressly contain language indicating the parties mutual intent that the spousal support award is final and non-modifiable until the specified termination event (e.g., death, remarriage, etc… ) occurs.
If the spousal support award is contained in a Judgment of Divorce or otherwise was approved by the court, the position of the Michigan Court of Appeals is that spousal support cannot be terminated based upon the remarriage of the recipient of support. That position is further strengthened by express language in the Michigan Court Rules encouraging Courts to enforce alimony agreements. See MCR 3.206(A)(1) which states that when the court approves an agreement providing for support or maintenance of minor children or spousal support or maintenance, it must do so in the final judgment or order on the prescribed form.
However, while the position of the Michigan Court of Appeals is to strictly enforce (i.e., not modify) spousal support awards imposed by agreement, courts have discretion to enforce spousal support orders imposed by trial courts. In those circumstances, the trial court has discretion. The enforcement mechanisms available include: conferring jurisdiction upon the Friend of the Court (FOC) (if the support awarded is for minor children); referring the matter to the FOC for an enforcement hearing; holding the non-compliant party in contempt of court.
The penalty for contempt of court is a combination of a fine, attorney fees, and/or jail. Contempt has been used at the trial court level to force a party to comply with a spousal support obligation as well as obtain from the non-compliant party the payment of the attorneys fees incurred in filing the motion. In Fisher v Fisher the Michigan Court of Appeals even awarded attorney fees for the appellate case because the husband did not comply with court orders.
Alimony Tax Considerations
When determining amounts and duration, courts and mediating parties have likely taken into consideration that fact that the person paying support would likely receive a tax deduction, and alimony would be taxed as income to the recipient. Alimony is usually reported to the IRS on IRS Form 1040, and is usually entered as income for the recipient, and a deduction on the IRS Form 1040 for the payer. However, with the enactment of the Federal Tax Cuts and Jobs Act (TCJA), those rules will change for divorce decrees or separation agreements executed after December 31, 2018. Payments made pursuant to a divorce settlement executed after this date will not be tax deductible by the payor or taxable income to the payee. The TCJA changes will be in place until December 31, 2025, unless an amendment to the TCJA extends the deductibility of payments. Separations and divorce decrees entered into before January 1, 2019 are not affected by the TCJA.
Getting Help with Alimony
Seeking help from a skilled family law attorney is critical when preparing to determine spousal support payments. Divorce and annulment procedures can be a very complex, tedious and emotional process; the laws governing alimony can be even more confusing without a professional’s legal advice. A family law attorney can help explain Michigan’s 14-factor standard for alimony and negotiate a fair amount of spousal support payments. In addition , a lawyer can help clients file and respond to motions to modify support and enforce spousal support payments. Individuals dealing with separation or divorce should seek the legal support of a dedicated legal professional. When searching for family law representation, clients should consider attorneys whose practice exclusively focuses on family law cases. A qualified family law attorney will offer clients the diligent legal support necessary to ensure their best interests are pursued.
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