Spousal Support Roulette – The Taylor Story
The hardest scenario in negotiating a divorce is when one spouse is asking for spousal support (aka alimony). So, when Chris Taylor asked how much spousal support he should pay his wife I took a deep breath.
We can provide clients reasonable advice on child custody schedules and dividing assets and debts. Giving clients child support amounts is simple because there is an exact formula. But when they ask for how much monthly spousal support someone should pay, I sound like a lawyer with no experience. Why? Because my advice is no better than a guess.
Spousal support amounts are wildly unpredictable due to the current laws. Or should I say the lack of laws. The courts do not have a statutory formula for calculating spousal support. Each Judge can use their own formula. Guessing what a judge will order for spousal support is no easier than guessing what number a roulette marble will fall on. One judge might order $1,000 a month. Another judge with the same facts might order $400 a month. And a third judge may order $100 per month. Guessing at a spousal support number is like guessing at black or red and having it land on green.
Chris and Dawn Taylor have been married for 12 years. They don’t have any children. Chris has a good casino job earning $11,000 a month. Dawn is a teacher earning $4,000 a month. This is big enough difference of income that Dawn should expect some amount of spousal support. Our spousal support calculator estimated him paying $1,680 a month. But the calculator is just an estimate based on a formula that almost became the law. This formula is not the law and therefore not mandatory.
Alimony historically exists to equalize the income gap between a husband and a wife who stayed at home. The courts did not want a divorce to place the wife in poverty. Times have changed, with more and more women in the workplace. But we still see plenty of scenarios with large enough income differences between spouses. We even see wives who make more than husbands. Alimony is not based on gender. It is based on a gap in monthly income. When this is the case, the court will attempt to equalize these incomes gaps. The court will attempt to prevent the lower income earning spouse from experiencing a huge drop in income when they divorce their higher income earning spouse. But advising someone how much is a gamble.
The current system for determining alimony is gambling because it all depends on the Judge’s opinion. The law states the Judge can selectively choose “factors” they deem necessary to determine the amount of alimony. The law gives Judges several factor to look at but does not mandate them to only use those factors. In other words, the Judge’s final order is based completely on their own discretion.
Sure, the Judges look at current incomes. But the Judges can also look at education earned during the marriage, earning capacity of either spouse, standard of living during the marriage, age and health of each spouse, or how much in assets or debts they are taking from the marriage. Basically, the Judges can look at any factor they believe is relevant.
As you can see these factors are extremely subjective. And these is no exclusive list of factors. One attorney once described alimony as nothing more than a Judge determining how many oranges should be traded for three apples. Judges who don’t like apples might say one orange. Judges who like apples might say ten oranges. The equation for converting oranges to apples is subjective and completely based on the Judges opinion of oranges and apples.
Getting back to the Taylors. The monthly estimate was $1,680. The would give Chris monthly net income, before taxes and expenses, of $9,320. Dawn’s would be $5,680. That still leaves a monthly difference of $3,640 a month. Would a Judge give Dawn half of this extra difference? I could not give Chris a solid answer. The most I could muster to say is “maybe”. To provide him better advice I turned to a common analysis Judges discuss. They call it “need” versus “ability to pay”.
In need versus ability the pay the Judge may look at Chris and Dawn’s monthly bills. By evaluating the bills they can determine how much discretionary money Chris or Dawn have left over each month. In this situation, Chris had more expenses because he had student loans and took on $30,000 in community debt. Dawn had no student loans or community debt. And Dawn’s vehicle was paid off while Chris had a lease payment. When you include expenses, Chris had $2,000 a month left over, while Dawn had $1,000. I recommended Chris divide this difference. Chris increased his alimony offer to $2,100 a month for 3 years. Then the amount would decrease to $1,100 a month for another 3 years. He proposed this amount to Dawn and she accepted. The divorce was finalized without a trial.
What this a good deal for Chris or for Dawn? I’m not sure. A Judge could have given her more or less. They both gambled a little by accepting this number.
The Nevada Courts have requested the Nevada Legislature to pass laws providing more consistent spousal support awards. A more definitive alimony formula would reduce inconsistencies. Reducing Judge subjectivity with a fixed alimony formula would be a good step toward judicial consistency. But no formula has been created.
Nevada tried to create a formula in the late 1990’s. Several licensed divorce attorneys came together to propose an alimony formula. They met in Tonopah Nevada to create a formula, called the Tonopah formula. It was never accepted as law but the formula is widely used in calculating spousal support. Our online spousal support calculator uses most of the factors in this formula. But the Tonopah Formula is not law and therefore Judges are not bound by it.
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