Divorces are usually stressful and costly. When the papers have been signed, and the property has been divided those costs may continue, if you are responsible for continuing support. There are two types of continuing support upon divorce: spousal and child. These are distinctly different. They can be tricky and confusing, so what exactly is the difference between child and spousal support?

What is child support?

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Child support is when a non-primary caregiver pays an amount to the primary caregiver for the cost of caring for a child. The amount of support is calculated by a formula. These formulas vary from state-to-state, but factors that may be included are: income of the parties; tax status; who pays for the child’s health insurance and child care; how many children there are; and how much time the children spend with each parent. According to Elizabeth Bransdorfer of Mika Meyers, “Almost always child support will be award in cases with minor children.” Only for specific reasons would child support not be award.

What is spousal support?

Spousal support, also known as alimony or maintenance, is a payment to an ex-spouse as ordered by the court. Its purpose is to limit the economic impact a lower-wage spouse may experience upon getting divorced. Unlike child support, there isn’t always a formula to determine this. A judge must, as Bransdorfer states, “balance the needs and the resources of the parties without impoverishing the other.” For instance, a child does equal larger need, but child support results in larger resources. Currently in Michigan, for example, child support is determined first and only then is spousal support determined.

There are a variety of factors that go into determining spousal support. These vary state-by-state but can include: length of marriage; age of the parties; income; ability to generate income; health; and past relations and conduct of the parties. Past conduct could include abuse--while, at least in Michigan, courts are not allowed to punish people for past bad behavior, it does play a factor. A judge tends to have much more discretion in spousal support awards than in child support.

The factor of ability to generate income allows for the calculation of not only the parties actual income but what they used to or could make if they choose to quit their job in hopes of avoiding having to pay spousal support. The court may, “penalize this type of subterfuge,” says Bransdorfer but it must be proven.

How long must one pay support?

Child support is usually paid until the child reaches adulthood, is on active military duty, or the child is emancipated by the court. Child support could continue into the child’s adulthood if they have special needs. It could also be terminated early if both parents agree it is no longer needed or if the child is adopted.

Spousal support these days is more likely to be limited. The concept is the receiving spouse is expected to work toward being financially independent either by building a career or going back to school. Spousal support may be set for a certain number of years on a declining scale in order for some one to accomplish these goals.

Is child or spousal support negotiable?

Child support is generally always modifiable. For instance, if a parent receives a raise at work their child-support payments can go up. The court cannot force a parent to visit or see their child, so there are no penalties for a parent not using their visitation rights. However, if the primary caregiver incurs extra costs (i.e. child care), they may be granted an increase in child support payments. Likewise, if you are paying child support and there are disagreements about your visitation rights, this does not entitle you to withhold your child support payments.

Depending on your jurisdiction and terms, spousal support may be modifiable or not. There are pros and cons to both. In modifiable agreements, if the paying spouse loses their job, they may be able to reduce their payments. If there is a non-modifiable agreement, this would not be considered.

Generally, recipients of either child support or spousal support do not have to prove that the funds are being used “as intended.” The only documentation of these funds that is kept is for tax purposes.

What about taxes?

Currently, neither spousal support nor child support are tax deductible by the payer, and they are not considered taxable income for the payee. 

However, this wasn't always the case. Prior to January 1, 2019 tax reform, spousal support was tax deductible. Spousal orders created prior to 2019 have been grandfathered into the system and receive the same tax treatment as they did before this piece of legislation passed. If an old spousal agreement is going to be re-issued, the old tax benefit can be preserved, but it must be listed as a condition of the new agreement. 

There are other tax issues to consider regarding child support, such as which parent can claim a child as a dependent. You should consult a tax professional to asses your specific situation.

What happens if you fail to pay?

There are consequences for not paying either type of support; however, the punishment and consequences are generally harsher if you become delinquent in child support payments. The ramification could include wage garnishment or even jail time. State agencies must help collect delinquent child support payment. This is not the case for spousal support in most jurisdiction the only legal consequence is being held in contempt.

Looking Forward

Divorces are complex and if child and/or spousal support are part of your agreement it’s not over when you sign the papers and are no longer married. A divorce attorney cannot only help you navigate the actual marriage dissolution but also the continuing aspects outlined in your final agreement allowing you to move forward in your life.