The purpose of alimony is different than dividing the assets. Unlike the equity in a home, or the savings in a bank, alimony is looking to keep the spouses on equal financial footing. Alimony is attempting to equalize the income earning one spouse has gained over marriage, that the other spouse hasn’t gained. At the most basic level, alimony is a monthly payment from one ex-spouse to the other ex-spouse. Alimony is not meant to help with childcare expenses, extracurricular activities, or other expenses related to children. That is the purpose of child support.
The closest the Nevada Supreme Court has come to explaining its purpose of alimony is its statement in 1998 that “property and alimony awards differ in effect,” with alimony constituting “an equitable award serving to meet the post-divorce needs and rights of the former spouse.” Nevada has three types of alimony; temporary, rehabilitative, and permanent. Temporary alimony is bridge-the-gap alimony awarded to help the recipient spouse make the transition from being married to being single. Rehabilitative alimony is to assist the recipient spouse gain skills to become income self-sufficient. Permanent income is for those long-term marriages where temporary or rehabilitative support are not sufficient.
Temporary alimony is made to help cover legitimate short-term needs. The length of the monthly support is two to three years. Consider a needy spouse who is moving out of the marital home, doesn’t have a full-time job to pay for rent, utilities, insurance, and new furniture.
This type of support is used to pay for redeveloping previous skills, earning licenses, gaining credentials, acquiring new education, or gaining work experience. In deciding whether to grant rehabilitative alimony, a court must explicitly consider whether the spouse who would pay such alimony has obtained greater job skills or education during the marriage, and whether the spouse who would receive such alimony provided in-kind support or financial support while the other spouse obtained these skills or education.
Permanent alimony is to assist spouses of a long-term marriage, where temporary alimony is not sufficient enough, and rehabilitative alimony is not appropriate. The courts look to permanent alimony in those marriages of 10 years and more and where the recipient spouse’s age or health is a relevant factor. The example of permanent alimony is the traditional situation where the husband worked and the wife stayed at home raising the children for a 30-year marriage. The couple are now in their 60’s looking for a divorce.
No Spousal Support Formula
Nevada doesn’t have a formula or a way to calculate how much alimony to order. The laws made by Nevada’s legislature, simply states alimony should be “just and equitable”. The Nevada Supreme Court decried the Nevada Legislature’s failure to set forth a formula for determining the appropriate amount of alimony. In 1997 the Family Law Section of the Nevada State Bar, in response, appointed a working group of divorce lawyers to propose a calculation. After some mathematical testing, and heated discussion a proposed formula was created. The formula was to be voted on by the next Nevada legislature. It wasn’t, and so twenty-years later we still are left with arguing “just and equitable”.
Along with just and equitable the courts are allowed to review a multitude of factors to calculate spousal support. The main factors are:
- The duration of the marriage;
- The standard of living during the marriage;
- The financial condition of each spouse;
- The income, earning capacity, age and health of each spouse;
- The existence of specialized education or training attained by each spouse during the marriage;
- The value, and amount of property each spouse is receiving.
The Nevada Supreme Court has been quite clear in noting, however, that simple “fault” or “bad acts” not directly causing economic harm are factors and not to be considered in the granting of alimony. Also, the court does not consider gender a factor.
Although not a stated factor the “economic need” and “ability to pay” does appear to affect a court’s decision. At the most basic level, the court is going to look at what the economic need is for the recipient spouse. In other words, now that the divorce is over, what does the recipient spouse need to survive.
Need is not simply a roof over their head and food in the house. The standard of living during the marriage is taken into consideration. It may be true that the recipient spouse can survive without Netflix, weekly manicures, and weekend brunches. But, when the court is determining the need of the recipient spouse, the court wants to look at what the standard of living was during the marriage.
The judge applies the factors to a spouse’s ability to pay. Adding up income from all sources, deduction taxes, and deducting reasonable expenses, the court is able to see discretionary income. The court will not consider all expenses, only reasonable ones. For long term alimony awards the court is going to balance the economic need with the ability to pay to create a “just and equitable” lifestyle for both parties.
Duration of Alimony
When ongoing alimony payments are made (as opposed to a lump sum payment), they generally must continue until the death of either spouse or until the dependent spouse remarries. When rehabilitate support is awarded, the dependent spouse is typically given a predetermined amount of time to complete any necessary training and to become fully self-sufficient. NRS 125.150(1) authorizes the court to award alimony at the conclusion of a divorce case. Unless otherwise ordered by the court, alimony terminates in the event of the death of either party or the subsequent remarriage of the spouse receiving support.
Modifying Spousal Support
As mentioned, an individual receiving permanent spousal support in installments will continue to do so until death or remarriage; however, the amount may be modified if circumstances change. In general, a change in income of at least 20 percent is necessary to petition the Court for modification.
How It Adds Up
Now that we have discussed the essential elements of spousal support, what does this look like in the courts? There are two cases which we feel the Supreme Court has defined the boundaries of “just and equitable”. In 1988 the court heard Heim v. Heim and reversed the district court’s spousal support amount ordering the court to provide the wife more. In 1990 the court heard Fondi v. Fondi and felt the amount awarded was fair.
The Heim’s were married for 37 years. Mr. Heim held a Ph.D., and earned $60,000 a year. Mrs. Heim was 57 years old, had never earned more than $600 a month, and had no marketable skills to speak of. Additionally, there were little assets to divide. The court requested a minimum of $1,500 a month lifetime alimony to be awarded. The court looked at the financial condition the parties would be left with anything less. The court also spoke of Mr. Heim’s Ph.D. as a “career asset” which he earned while married and an asset Mrs. Heim should receive some benefit from.
The Fondi’s were married for 17 years. Mr. Fondi was a lawyer earning $60,000 a year. An education he acquired before the marriage. Mrs. Fondi had been a legal secretary and at the time of the divorce was not working. Mrs. Fondi was not obliged to stay home and care for the children. The lower court awarded $3,000 in rehabilitative support. The Supreme Court was comfortable with this number pointing to Mrs. Fondi receiving $90,000 in property, money from pensions, being only 45, and having marketable skills to support herself.
From these two cases you can get a taste of what the court is looking for. The court is looking what the couple’s financial status will be after the divorce. A longer marriage and no marketable skills can equate to more spousal support than a shorter marriage. The court is not needing absolute equal income, just a reasonable fairness or income.