When people are divorcing or ending a long-term relationship, they must often confront the idea of spousal support. While the general concept is well-understood, there are some specific terms that people often have questions about. In this post, we will address two related concepts: indefinite support and the ‘Rule of 65’.
When determining an award for spousal support, often there will be a time period set for the duration of the support award; a number of years or months, for example. However, in some cases, support is awarded indefinitely, meaning that no time limit is set at the time the support award is made. This does not mean that the support will continue forever, or that the amount of support will remain unchanged. It simply allows for an open-ended award that may be changed, varied or terminated when needed in the future.
Though the name implies permanence, indefinite support is subject to periodic review to adjust the award as needed under the current circumstances. For example, if the income of the payor changes significantly due to job loss, an inability to work, or retirement, this would have an impact on their ability to pay the previously set amounts. In addition, if the payee has become self-sufficient through other means, support may no longer be necessary. Further, a support recipient may be obligated, depending on age and circumstance, to make reasonable efforts to become self-sufficient. If they fail to do this, income may be imputed to them, reducing their support entitlement.
The current law does tend to support the idea that after long marriages, spousal support will often be permanent, even if the amount is subject to reduction to reflect the recipient’s obligation to pursue self-sufficiency.
As mentioned above, indefinite support is common when a long-term marriage or relationship of at least 20 years comes to an end while shorter marriages may often have a specified duration attached to the support award.
However, in some cases indefinitely support will be applied to a shorter relationship, depending on the age of the parties. Under the Rule of 65, if the age of the support recipient plus the duration of the marriage equals 65 or greater, it is more likely that support will be awarded on an indefinite basis. Take, for example, a couple who married at 55 years of age and divorced after six years:
61 (the age of the recipient at the time of divorce) + 6 (the length of the marriage) = 67
This would mean that even though the marriage was relatively short, the advanced age (and therefore, reduced earning capacity) of the recipient would demand an open-ended support award.
Note that this is only a “rule” about duration, as the amount of support would be limited by the length of the marriage. In reality, given the ages of the parties in the cases covered by the rule of 65, there will likely be significant changes in the amount of support ordered upon the retirement of one or both of the spouses. This refinement to the formula for the duration is intended to respond to the situation of older spouses who were economically dependent during a medium length marriage and who may have difficulty becoming self-sufficient given their age.
While the rule will be applied to marriages between 5-19 years, this is not the case for marriages under 5 years in length. This is because the assumption is that short marriages should generate very limited support obligations.
Some may feel that when the parties are younger and still able to earn a decent income, indefinite support should be avoided. However, the reasoning behind the fact that support is often indefinite after the end of a long marriage is because in many cases, the recipient will have spent the bulk of that time caring for children and not in the workforce. Someone coming out of a long-term marriage at 40 years old who has never worked may be more disadvantaged from a career perspective than someone who had worked for 25 years and divorced at 52. As a result, the ‘rule of 65’ is not applied to situations where the marriage endured for at least 20 years. However, it is important to remember that the award will still remain subject to the usual review and variation as needed.
The family law lawyers at Mincher Koeman are exceptionally experienced with respect to support awards following the breakdown of a relationship. We will work with you to ensure that you receive a support award that accurately reflects the true financial positions of the parties. Contact our office today by calling us at 403-910-3000 or contact us online.
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