Updated: Sep 25, 2020
Divorce in Michigan has its own Court. It is called the Family Law Court. The Family Law Court is a Court of equity; meaning that the Court does not need a statute to do what is right. The Court has inherent powers. In Michigan we have three different kinds of spousal support:
a. Spousal support pendente lite: This is a fancy name for a spousal support order that is granted while a divorce is pending and possibly before the Court has heard any real testimony. As a matter of common law (CJ19-203) a spouse cannot contract away the obligations of support during a marriage. So even if there is a prenuptial waiving spousal support a Court can still enter an order for spousal support, if needed, before Judgment.
b. Spousal support that is modifiable: Modifiable spousal support means that if the Court orders spousal support by virtue of trial or agreement of the parties, the amount and/or duration of the spousal support may be changed by the Court if there is a significant change of circumstances. Significant circumstances can be loss of a job (reduced income), and bad health requiring more support are some significant changes of circumstances.
c. Non modifiable spousal support: Sometimes this is called alimony in gross. Once the Court enters a non-modifiable spousal support order the Court is without power to change it, no matter what the circumstances are. This kind of spousal support can only be entered by agreement of the parties. There are benefits and disbilites that come with this kind of order.
Besides the inherent power of the Court to grant spousal support, in Michigan, we have a statute MCL 552.23 that basically says: When there is not enough property for the support of a party the Court may award spousal support as the Court considers is just and reasonable after considering the ability of either party to pay and the character and situation of the parties, and all other circumstances of the case.
The statute says a Court must be just;
The statute says a Court must be reasonable;
The statute says a Court must find an ability to pay;
The statue says a Court must consider the situation of the parties;
The statute says a Court must consider anything else.
The Court of Appeals has instructed the trial judges that the statue does not allow the trial court to use a formula in deciding the question of how much or how long. Myland vs. Myland 290 Mich App 691 (2010). The trial courts are directed to consider all of the factors as found in various cases including Myland and then come to a decision.
There are presently 14 factors, including:
1. The past relations of the parties.
2. The length of the marriage.
3. The abilities of the parties to work.
4. The source and amount of properties awarded.
5. The ages of the parties
6. The ability to pay
7. The present situation of the parties.
8. The needs of the parties.
9. The party’s health.
10. The prior standard of living and whether one is responsible for the support of others.
11. Contribution of the parties to the joint estate.
12. Fault (usually the same as (1).
13. The effect of a party’s cohabitation on a party’s financial status.
14. General principals of equity.
In the years of my being in the family law discipline and having tried cases in many jurisdictions, I can report that trial judges and the judges of the Court of Appeals don’t like to order spousal support and if they order it, very seldom will it pass the reasonable test.
In a recent Court of Appeals case the issue was whether the amount ordered was enough given the circumstances. The Court of Appeals stated that given the facts, they would have awarded more but did not want to second guess the trial judge.
Previous to December 31, 2018 all spousal support was taxable to the recipient and deductible to the payer and that is still the case today provided the order of spousal support was entered before December 31, 2018. Spousal support orders entered after December 31, 2018 are no longer deductible to the payer and the recipient no longer pays taxes on what he or she receives. See our previous article on taxation and spousal support.
There are formulas that are available that may give practitioners some guidance. One is called the Ann Arbor guidelines and can be found on Margin soft software. One that the Court used in the Myland case was of the trial court’s own design. He would deduct the lower taxable gross from the higher taxable gross and multiply the result by the years of marriage as a decimal to get the amount to be paid & 1/3 of years of marriage for length.
The Court can look at the results of using a formula, but can’t use the formula in making its decision on how much or how long.
If you have questions about spousal support, contact our attorneys today at 269-381-4471.