Alimony is a complicated subject, and attempting to learn the ins-and-outs can be a dizzying experience. The following answers to some of the most frequently asked questions about alimony will cover the basics of establishing and collecting spousal support.
Are Alimony Laws the Same in Every State?
No. There’s no federal law governing divorce, which means each state has its own divorce laws, including laws on establishing and collecting alimony (sometimes referred to as spousal support or maintenance).
Do I Have to Wait Until the Divorce Is Over to Get Alimony?
Not necessarily. If you and your spouse can’t reach an agreement on temporary spousal support while the divorce is proceeding, you can file a motion (written request) with the court for what is known as “pendente lite” or temporary alimony. The purpose of temporary alimony is to cover the dependent spouse's financial needs during the divorce, such as rent or mortgage payments, utilities, and credit card debts. Temporary support will allow the spouses to maintain the status quo until the divorce is over.
Is There More Than One Type of Alimony?
There is. But first off, be aware that an award of alimony is not a given today. The concept of permanent (lifetime) alimony is rapidly fading and, if applicable, is typically reserved for long-term marriages, where one spouse is financially dependent and not capable of becoming self supporting. What constitutes “long-term” varies from state to state, but usually refers to a marriage that is anywhere from a minimum of 10 to 20 years.
If a court does award alimony, more often than not, it will be some form of “limited-duration” support. This type of alimony is meant to give spouses a period of time to get back on their feet financially, with an eye to becoming self-supporting.
Limited-duration alimony that a court awards to allow a spouse time to get into the workforce and/or perhaps learn skills to make the spouse more employable, is often referred to as “rehabilitative” alimony.
Another type of spousal support is known as “reimbursement” alimony. You’re likely to see this in short marriages where one spouse helped put the other through college or graduate school. The purpose is to repay that spouse for the effort and costs relating to advancing the other spouse’s education. The theory is that the spouse who contributed to the other spouse’s schooling expected to share in the resulting financial benefits.
What Are Some of the Factors a Judge Looks at in Determining Alimony
Again, these vary from state to state, but some of the more common factors include:
- a spouse’s actual financial need and the other spouse’s ability to pay
- the length of the marriage
- the spouses’ ages, and their physical and emotional health
- the standard of living established during the marriage
- the spouses’ earning capacities and educational levels
- parental responsibilities for the children
- the distribution of marital property between the spouses, and
- income available to either spouse through investments of assets.
Note that one of the factors is a spouse’s ability to pay alimony. That doesn’t mean that spouses can limit their income in the hope of avoiding an alimony obligation. If a court finds that a spouse purposely cut back on earning capacity, the court can impute income to that spouse. In other words, based on elements such as a spouse’s earnings history, skills, and education level, the court can determine what the spouse should be making, and base an alimony award on that higher figure.
Can You Change an Alimony Award?
An alimony award may be subject to change as long as the final spousal support order and divorce judgment do not prohibit a modification to alimony. If the final order and settlement agreement do not prevent you from asking for a change to alimony, and you want a court to modify spousal support (either up or down), you’re probably going to have to prove to a judge that there’s been a substantial change in circumstances since the last alimony order.
Examples of what might constitute a valid change of circumstances are:
- a significant increase, or involuntary decrease, in either spouse’s income
- a spouse’s illness or disability
- the remarriage of the spouse receiving alimony
- the cohabitation of the spouse receiving alimony
- retirement of the spouse who is paying alimony, and
- the death of either spouse.
In reviewing the above list, there are a couple of things to make note of. The term “cohabitation” doesn’t mean simply having relations with someone. In most states, you’d have to prove that the spouse receiving alimony is living with someone as if they were married.
The reason cohabitation is an issue is because it generally means you have someone sharing your household expenses, and thus you shouldn’t need all, or at least some, of your alimony. And if you’re living with someone and that individual isn’t contributing to your expenses, then in effect you’re using your alimony to support that person. Either way, it could be a problem. Whether cohabitation exists is a very fact-specific question. But the longer the relationship, the better the chance of a court finding cohabitation.
As to a spouse’s retirement, this usually refers to leaving a job at full retirement age. A judge isn’t likely to modify an alimony award if the paying spouse takes an early retirement without a good reason, such as a medical issue.
Although the remarriage of the spouse receiving alimony normally results in a termination of spousal support, the remarriage of the paying spouse doesn’t usually end the alimony obligation.
If a paying spouse dies while in arrears on alimony payments, the receiving spouse can ordinarily make a claim against the deceased spouse’s estate for payment of the arrears.
Also, if a paying spouse declares bankruptcy, as a general rule that doesn’t terminate the alimony obligation.
Is Alimony a Tax Deduction for the Paying Spouse and Reportable Income to the Receiving Spouse?
That’s been the law for quite a while, but under the “Tax Cuts and Jobs Act” of 2017, it appears that alimony will no longer be deductible for paying spouses, or reportable as income for receiving spouses, for divorces finalized after December 31, 2018. Tax laws are quite complex and are subject to change, so be sure to discuss tax issues with your lawyer or accountant.
To learn more about alimony, consult with a knowledgeable local divorce lawyer.