SPOUSAL SUPPORT: MODIFIABLE vs. NON-MODIFIABLE

By: Sandra A. Harrison, Attorney at Law.  Macomb County, Michigan.

In cases of divorce or separate maintenance, often the issue of spousal support (also referred to as alimony) must be addressed. In the State of Michigan, courts consider eleven factors in determining whether spousal support should be granted to either party. Often the most important of these factors are:

1. length of the marriage;
2. age of the parties;
3. needs of the parties;
4. ability to pay;
5. and past conduct of the parties (fault issues).

If it is determined that one party is entitled to spousal support, the next step is to negotiate the monthly amount and the length of time the party shall receive said award of support. In Michigan, the amount and duration of spousal support is subjective. There is no adopted formula for the courts to follow in determining what the payee should receive.

In this economy, one important consideration is whether an award of spousal support should be modifiable or non-modifiable. Pursuant to MCL 552.28, a court has the power to modify an award of spousal support. However, the parties, upon an agreement and specific waiver of rights, may agree to make an award of spousal support non-modifiable. Staple vs. Staple, 241 Mich App 562 (2000).

There are many reasons parties would agree to non-modifiable spousal support. Perhaps the most common reason is the certainty it gives to both parties. Both parties can, whether he/she is the payee or payor of the support, make a budget for future payments without having to worry that the amount could change at any time. Parties may also agree to non-modifiable support because one party is expecting an increase in his/her income such as a raise in salary, increase in bonus, or payout from a business venture. For example, if the order called for non-modifiable support, the payor would not have to share that increase in income. However, if the support order is for modifiable support, the payee of support could file a motion to increase support based on this increase in income. If a court finds a change in circumstances, it could order the support amount is to be modified.

If the parties waive their right to modify a spousal support order; it does not matter if there is a change in circumstances, a court will not modify an agreement of the parties. Therefore, if the payor of support loses his/her job and is unemployed for months or even years, the spousal support arrearages keep racking up. Such support awards are not subject to bankruptcy. If the payor fails to make court ordered payments, he or she could be held in contempt of court. With the high rate of unemployment in our State, parties have a great motivation to consider modifiable support more than ever. Despite the uncertainty and other draw backs discussed above, with the current economic climate in our State as it is, parties should consider whether modifiable spousal support may be a better option at this time.

Call the Law Office of Simasko, Simasko & Simasko, located in the City of Mount Clemens, Macomb County, Michigan, for your free consultation with a family law attorney regarding spousal support or other divorce and separate maintenance issues.