By Anne Shale   |   April 15th, 2008

Attorney Anne Shale adds 10 more factors to consider in Part 2 of “Factors The Court Considers In Determining Whether Or Not To Award Spousal Support”.


The duration of the marriage. The longer the duration of the marriage, the longer the potential spousal support obligation is likely to be. For example, if the marriage of the parties exceeds thirty (30) years in duration, the Court is likely to attempt to “equalize” the earnings or incomes of the parties. And, if the parties have been married just one to two years in duration, the Court is likely not to award any amount of spousal support. While I have represented Husbands who say they have tried to keep the “marriage together” for the sake of the children, this goal often comes back to haunt them when their Wives are awarded a lengthy duration of spousal support. In Montgomery County, Ohio, there is a very “general” and “unwritten” rule that spousal support may be awarded for up to one-third (1/3) of the duration of the marriage. Given a marriage of eighteen (18) years, it would not be unusual for the Court to order a term certain of spousal support for six (6) years.


The extent to which it would be inappropriate for a party, because that party will be custodian of a minor child of the marriage, to seek employment outside the home. If a couple has two to three children who are younger than school age, it may cost more money to pay for work-related day care than for Mother to remain at home to be with the children. If you are the Wife/Mother with very young children, it would be beneficial for Mother and her counsel to obtain estimates for the costs of work-related day care. It is especially expensive for infants and toddlers who are not “potty trained”. It may make little sense for a young Mother to enter the work force if her earnings are going to be less than the cost of work-related day care.


The standard of living of the parties established during the marriage. While this factor may be important to the Court in examining a marriage wherein the parties lived on an extraordinarily high level of income, it is not a relevant factor to be considered in the majority of divorcing couples within the Domestic Relations Court of Montgomery County and the surrounding counties of Ohio. In the State of California, Britney Spears’ ex-Husband was awarded an extravagant amount of spousal support based upon the income Ms. Spears generates and based upon the standard of living Kevin Federline experienced during the brief marriage of the parties. Likewise, in England, former Beatle Paul McCartney is paying dearly for the standard of living his former Wife (Heather Mills) enjoyed during their rather brief marriage.


The relative extent of education of the parties. With this factor, the Court is determining if either of the parties has graduated from high school, from college, from post-baccalaureate programs, from trade schools, from any apprentice or on-the-job training programs. Also of importance, has the party graduated from a program wherein jobs are available. For example, Wife may have a degree in fine arts or European history, but will that education translate into a meaningful position of employment with a modest or substantial income. If either party married before attaining a high school education, the attorney for either party may represent to the Court that Husband and/or Wife must have spousal support in order to attain a GED (high school equivalent) and a trade school or community college associate’s degree.


The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties. The Court must be advised if either party has been ordered to pay spousal support or child support to any prior spouses or to any minor children of previous marriages as those support obligations can not be ignored by the Court. And, the Court must know if there are any pending Chapter 13 Bankruptcy proceedings wherein one or both parties may be obligated to pay a monthly bankruptcy payment until the discharge or payment of the indebtedness. Further, do either or both parties have any indebtedness to the Internal Revenue Service as those income tax obligations must be paid. Also, are there any pending foreclosure proceedings and are the parties trying to bring their mortgage current in order to retain possession and ownership of the marital residence. In short, there may be cases wherein spousal support would be appropriate and reasonable but there simply are no funds available for the obligation to be paid.


The contribution of each party to the education, training, or earning ability of the other party, including but not limited to, any party’s contribution to the acquisition of a professional degree of the other party. This factor may be entirely appropriate for the Court to consider wherein Husband is assisted by Wife while she works to put him through medical school. The couple struggles financially on Wife’s income while Husband studies and learns and has horrendous hours as an intern and resident. Finally, Husband has the coveted Medical Degree and the marriage falters and fails. Should Wife receive spousal support for the hard years of work she endured while assisting Husband in obtaining his medical degree? He now has the potential of earning $100,000 + income while she may remain at the income level of $20,000 to $40,000 per year. Certainly, Wife and Wife’s counsel would want to argue that this factor should be considered by the Court in awarding a fair and reasonable amount of spousal support to Wife.


The time and expense necessary for the spouse who is seeking spousal support to acquire education, training, or job experience so that the spouse will be qualified to obtain appropriate employment, provided the education, training, or job experience and employment is, in fact, sought. If Wife has been a “stay at home” Mom with few or limited job skills, Wife and her counsel may want to obtain information from local colleges/technical schools/community college to ascertain the length of time it would take to obtain a meaningful degree or certificate and the cost/expenses of doing so. Or, if a Wife has a degree which has not been utilized in many years, what programs would be available to get her back into the employment field and at what cost? It may be necessary to hire a vocational expert to testify as to the programs and training necessary for Wife to become re-employed outside the home.


The tax consequences, for each party, of an award of spousal support. It is most important that each party understand that spousal support is tax deductible to Husband but that it is taxable income to Wife. Accordingly, Wife must make plans to make periodic payments of income taxes during the year so that she is not left with a huge income tax liability at the end of the taxable year. Counsel for either party may hire an accountant to assist with the determination of the appropriate amount of spousal support taking into consideration the income tax consequences for each party.


The lost income production capacity of either party that resulted from that party’s marital responsibilities. I can provide an example of this factor from my own life experience. During the time that I was married to my Husband, an active duty USAF pilot, we traveled from base to base and from state to state. Although I always had employment as a nurse, I was never in a hospital or clinic setting long enough to make promotions from staff nurse to head nurse for example. Arguably, at the time of my divorce, my counsel could have asserted that I should have been compensated with spousal support for the fact that I was never able to progress in my nursing career due to having to relocate every few years.


Any other factor that the court expressly finds to be relevant and equitable. This provision is a “catch all” so that either party can present to the Court any other relevant information not previously set forth so that the Court has complete information to be able to make an informed decision on the spousal support issues. The factors may be related to the state of one party’s health or the cost of providing health insurance for a given condition or the inability to do so. This factor could be relied upon in unusual circumstances that must be brought to the attention of the Court.

In my experience with the issue of spousal support, I find Factors [a] and [e] to be the most relevant. Certainly, one of the parties must have adequate or more than adequate income in order to be able to pay spousal support, and the duration of the marriage appears to be the most relevant factor in determining the duration of the spousal support obligation. The result in each divorce case may vary greatly, depending on the Judge’s philosophy towards spousal support and the application of these factors to the facts.

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Anne ShaleAbout The Author: Anne Shale
Anne Shale is of counsel to Dayton, Ohio, law firm, Holzfaster, Cecil, McKnight & Mues. She is a former registered nurse and concentrates her practice in Family Law and Divorce cases.

Factors The Court Considers In Determining Whether To Award Spousal Support Pt. 2

2 thoughts on “Factors The Court Considers In Determining Whether To Award Spousal Support Pt. 2

  • Avatar
    March 6, 2009 at 10:13 am

    Hi, in my case, my marriage lasted 20 years. My husband took an early retirement from education 3 years ago. He was a principal. He is in good health. I have been treated for depression for the duration of the marriage. It continues to be a problem. I make about one third that my husband brings in with his retirement. I am due to get a percentage of one half of the retirement. Do you know how depression plays into account for the likelihood of getting spousal support? The last child is 19 and out of the home.
    Thanks, Jeri

  • Avatar
    March 6, 2009 at 10:14 am

    Hi, I forgot to say he is about to turn 56 years old and I am 54.

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