Ability to Pay

Spousal support is monetary payments made from one spouse to the other following a divorce or a separation. The goal of spousal support is to insure that each party has the necessary funds to meet their basic needs, as well as maintain their current standard of living following a divorce or separation.

Ability to pay and spousal support payments

Spousal support payments are determined by the courts after a number of factors have been considered. For example, the court will consider the length of the marriage, the ages of both parties, the anticipated needs of each spouse, the spouse’s conduct, the ability of each spouse to work and generate an income, the future needs of each party, the health of each party, the marital standards during the marriage, and general principles of equity and fairness.

Another primary consideration is one spouse’s ability to pay. The ability to pay is the paying spouse’s earning capacity and/or their current income. When determining spousal support the judge will consider how much the spouse currently earns and how much they could give to their spouse and continue to satisfactorily support themselves.

The judge will also consider whether the spouse is earning the amount they are capable of earning. For example, some spouses will intentionally become unemployed or fail earn what they could earn, given their skills and/or education.

Under the ability to pay consideration, the judge could order spousal support to be pay based on imputed income rather than actual income. For example, the judge could force the spouse to pay what they COULD earn rather than what they ACTUALLY earn.

Can spousal support payments be modified based on the spouse’s ability to pay?

In some states and under certain conditions, a spousal support order can be modified if the spouse’s ability to pay significantly changes. For example, if one spouse loses their job or becomes permanently disabled they could petition the court for a spousal support modification. Spousal support modifications could also be requested if the paying spouse can prove that the receiving spouse has had an increase in income.

In some cases, however, if the spouses have negotiated their own settlement terms, they may forfeit their rights to modify the spousal support agreement and add the provision that the spouse support is not modifiable or it is binding. In this case they may not have the right to modify the order. Orders entered by the court after a judgment, however, cannot be made nonmodifiable.

Ability to pay and child support payments

Like spousal support, child support payments are calculated in each state based on a variety of factors: the needs of the child, the standard of living of the child prior to the divorce or separation, the income of the custodial parent, and the paying parent’s ability to pay. Some states also allow judges a fair amount of leeway to determine child support payment amount after considering these factors; others do not.

Regardless of the calculation, if you are paying child support and your ability to pay substantially changes, you may petition the court to modify your child support order to lower your child support payments. If your ability to pay dramatically increases, the child support order may also be modified.