How Do Divorce Judges Determine Alimony?

Determining the amount of spousal support to be paid is up to the Judge, and can vary widely between otherwise similar cases.

by Honorable Anne Kass. Ann Kass is a District Judge in the Second Judicial District State of New Mexico

Alimony is one of the most volatile issues in divorce cases, even more acrimonious than custody disputes.

One reason alimony causes so much trouble is there are no practical guidelines for lawyers and judges to follow. That means no one can predict with much accuracy what the alimony award will be. It also means there is very little consistency from one case to another. When there is a lack of predictability and a lack of consistency in the law, cases end up in litigation because lawyers do not know what to advise about settlement.

What Factors are Considered?

The law does give us some factors to consider for alimony awards, but the law does not indicate how important any one of those factors is supposed to be. The law simply, or perhaps simplistically, says that after considering all the factors, the judge should do what is "fair." But "fair" is a very unclear standard. Each of the spouses has a different idea of what is "fair".

The factors the law provides, while specific, are not very pragmatic. The factors are the length of marriage, the spouses' ages, health, education, employment histories, earning capacities, and how much property each is taking from the marriage. In 1993, the Legislature added a new factor: the standard of living which existed during the marriage.

Alimony May Last Until Death

The lawmakers also gave us a new rule that if the marriage has lasted 20 years or longer, alimony obligations will exist from each spouse to the other unless they specifically agree to the contrary.

The family court judges and lawyers recently started a new project to try to solve this problem. We have created a form to use in cases where alimony is either court-ordered or agreed-to. We will list the factors, length of marriage, age, etc., and we will report how much alimony was ordered or agreed-to and for how long. The information from many cases will be put onto a computer disc. After a year or two, we hope to have collected enough data to analyze so we can create practical alimony guidelines by looking backwards at what was actually agreed-to or ordered in a large number of cases.

Hopefully, within the next few years alimony will no longer be the cause of expensive litigation because there will be predictable, consistent guidelines created not by the courts or legislature, but by people actually involved in divorce cases.

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