spousal support - alimony

Spousal Support

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Sometimes referred to as alimony, spousal support describes payments made by one marital partner to the other as a result of a separation or divorce. Your state may use either of these two terms, or opt for the term spousal maintenance. We use the terms interchangeably throughout this site. In any case, it’s all the same stuff.

No matter what your state calls it, spousal support is generally ordered by a court after there has been a court filing for legal separation or to dissolve a marriage and evidence has been presented that convinces the court that the support is justified. Either party may request spousal support (the plaintiff in a petition to separate or divorce, or by the defendant to a petition to separate or divorce in his or her response to a divorce or separation). The granting of support is intended to level the financial playing field when one partner has a disproportionate share of the assets, and when the party with fewer assets needs support from the overall marital assets to survive.

Few states have alimony laws on the books, leaving courts to make decisions based on case law and precedent. In the past, family courts have routinely granted long-term alimony for long-term marriages (minimum 7 or 8 years married). In more recent years that practice appears to be waning. Family courts grant spousal support in cases where a thorough financial examination takes place, one spouse is economically disadvantaged by the divorce and needs rehabilitative maintenance over a shorter period of time; the purpose being to allow the less self-sufficient partner to become self-supporting over a specific period of time through education or special training. Support payments are also more common in situations where one parent stayed home to care for children while the other spouse worked outside the home.

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Types of Spousal Support

  • Permanent Support – paid for an indefinite period of time – the order or agreement can include conditions that would terminate the support obligation e.g. death of either party or re-marriage of the receiving party.
  • Rehabilitative Support – a fixed length of time and a fixed amount. Aims to cover expenses while a spouse works to get back into the labor force. The order is typically in effect for 1-5 years.
  • Lump sum Support – not available in all states, this method orders specific amounts be transferred or paid over a short period of time. The order usually terminates once the payments have been completed. Very difficult to amend later unless fraud is alleged and proven. Interim support (pendente lite) may be ordered by the court during the divorce process.
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The court will examine the following factors in determining the need for spousal support:

  • how long married
  • earning capacity of both spouses
  • ages of any minor children and how much each parent has contributed to raising them
  • ages of the spouses
  • mental and physical health of the parties
  • how marital property and debt is divided
  • whether one spouse contributed to the education of the other
  • what each brought into the marriage
  • any marital misconduct, fault, fraud or violence

Questions and Answers

Alimony is money paid by one spouse to the other after a divorce for the purpose of financial support. Either partner may request and receive alimony. In recent years, there has been a noticeable trend by the courts to award alimony less frequently. Alimony is intended to support the dependent person until they can become independent. Some states, like Texas, require 10 years of marriage before alimony is considered. Most states do not have that 10 year minimum, however. Click on your state to view alimony details.

The impact of marital misconduct varies from state to state. There are states and judges that give it some weight, but many do not. In some instances judges will adjust the division of assets in the favor of the spouse that was cheated on. Ask a lawyer what impact his infidelity can have on your proceedings.

One needs to determine a spouse’s ability to pay alimony and how much. Without respect to marital misconduct, you should consider the assets and income of both parties, your earning capacities, how long your marriage lasted, the age of your children, if special considerations need to be addressed, how taxes will impact you both (remember, alimony is taxable to the recipient and tax-deductible to the paying spouse). Are there any pre-nups or marital agreements? Most states have not enacted alimony statutes, and local courts use case law as guidance. To get some IRS love on the subject, read Topic 452 – Alimony paid.

It’s going to depend on the laws in your state. Most states allow for the termination of alimony when the receiving spouse remarries. Some require termination if the recipient cohabits with someone. Some divorces include a provision that one partner (the one paying) maintain a life insurance policy with the partner receiving alimony, so that additional monies can be paid upon death. If you go this route, make sure the insurance company notifies you of any changes to the policy.

We presume you mean drastically lower. Remember that the alimony obligation is part of a court order, and unless you two have made provision (in writing) for this event, you’ll need to reach a new agreement now or go back to court. The alimony amount won’t change unless one of you requests a change by the court. Be aware that any verbal agreement subsequent to a court order may not be enforceable if someone changes their mind later on. Put everything in writing.

The answer to your first question is no, there is no certainty. In most cases it ends when the ex dies, unless you have a constructive agreement in writing, or he has made provisions in his will. Considerations can include life insurance policies or insurance annuities that get created at death to fund payments to you. See a financial planner for more detail.

Your situation has too many variables to provide an answer. Few states (Texas is a notable exception) require by statute that a marriage be a minimum of 10 years for alimony to be considered. We often hear the 10 year number because courts tend to use ten years married as a standard even if it is not stated in any law. Some states consider the marriage terminated from the date you file for divorce, so if your marriage is close to ten years, and you want spousal support, do not make any moves until you speak with an attorney. Most support is awarded based on case law (previous cases) so a local attorney would be knowledgeable about how local judges rule. See I.R.S. Rule 452.

For the most part, no. Each state is left to deciding this issue. Exceptions include a handful of counties around the country, as well as Arkansas and Pennsylvania.

There include: standard of living during the marriage, the needs of the recipient,, the ability to pay alimony, the ability of the recipient to get education or training, the recipient’s earning potential and personal assets, the ages and health of the spouses, their occupations and the skills of the recipient.

It used to be. Back in the day, alimony was barred or automatically awarded, depending on which which spouse was guilty. Fault is rarely considered in support cases now.

Times have changed. Perhaps due to the litigious nature of our society, judges avoid such rulings because their awards are often subject to appeals court scrutiny.

In general terms, the income from estates (including inheritances) is considered income for spousal support purposes. The principle that generates the income can be subject to consideration in some states, while it is specifically barred from consideration in other states. Segregating an inheritance in the receiver’s name only (from the outset of the inheritance) can be a determining factor in shielding the principle from the other spouse. We suggest you ask an attorney in your area.


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