Tuesday, July 29, 2014

Alimony/Spousal Support Ordered By The Court Is Always Modifiable

By: Carole L. Chiamp

If parties cannot agree on the amount and duration of alimony/spousal support, they must go to trial and have a trial judge determine how much alimony/spousal support is to be awarded and for how long it will be awarded.  In an unpublished case, Smith v Smith, Michigan Court of Appeals unpublished opinion in 2012, Docket No. 309094, the appellate court said that even though a trial court may indicate limitations as to amount and length of time alimony/spousal support is to be paid, this is only presumptive.  A change of circumstances allows either party to return to court for a modification.

Many couples, faced with future modifiability, would rather opt for certainty and agree to a sum payable for a certain length of time.  If the parties agree in writing, then the alimony/spousal support is not modifiable.

Unpublished cases do not carry the weight of law but can be instructive for the trial judges.

Monday, July 21, 2014

Alimony and the Double-Dip; Alimony and Computer Programs

By:  Carole L. Chiamp

Two recent cases have come down from the Michigan Court of Appeals which are unpublished.  As unpublished cases they do not carry the weight of law but are instructive to trial judges trying to make good decisions.

Double Dip
 Juarez v Juarez, Michigan Court of Appeals,  Docket No. 310470, decided December 12, 2013, awarded the business owner 50% of the value of the business and incorporated the future distributions of the business into his income for purposes of spousal support.  This is called a “double-dip” since the same income is used to value the business and then used again for determination of alimony/spousal support.  The Michigan Court of Appeals decided that there was no showing that use of the double-dip was inequitable.  The court stated that one reason the income was used was that there was a large disparity in the parties’ incomes and that the business owner was an abuser for 25 years of the marriage.

The view that the court should not automatically reject the “double-dip”, rather the court should look to all factors and make an equitable decision, is becoming more prevalent.

Judge’s May Consider Alimony/Spousal Support Prognosticator Programs

There are several computer programs which have been developed over the years to assist judges in handing out fair spousal support awards.  Unfortunately, spousal support can vary from judge to judge.  The prognosticator programs value a number of the factors which go into the spousal support award.  In this way the spousal support guidelines make awards more uniform.

The courts are not allowed to use a formula, rather the judge must weigh all of the alimony factors as stated in Michigan case law.  The trial court viewed the results from the prognosticator but only considered it as a useful tool or guide in valuing all of the factors.  The Michigan Court of Appeals affirmed.  Attorneys and mediators have long used the prognosticator as a tool and this decision allows judges to do the same.

The unpublished case Sparks v Sparks, Court of Appeals Docket No. 312641, decided October 17, 2013, recites the judge’s consideration of the prognosticator computer program use as long as it was only used as a guide and not used instead of careful consideration of all factors germane to alimony/spousal support.