Award Of Alimony, Maintenance Or Spousal Support
Alimony is an amount of money one spouse must pay to the other after a divorce to meet the needs of the more dependent spouse and permit that spouse to become self-supporting. It is now commonly referred to as "spousal support" or "maintenance" in divorce law. In some cases, courts also award alimony to maintain the status quo of the spouses and allow the less affluent spouse to continue a certain standard of living.
Alimony, maintenance or spousal support payments are awarded as a substitute to the support regularly provided by one spouse to another during marriage. Spousal support may not be available if the marriage lasted less than 10 years.
SIDEBAR: Laws in some states specifically prohibit an award of "alimony."
SIDEBAR: Alimony is not a lifetime pension for one of the spouses; its purpose is to ease the transition to the time the spouse can support him or herself in a reasonable manner.
There are several different types of spousal support that can be ordered by the court.
"Pendente lite alimony" is the temporary spousal support the court orders one spouse to pay before the divorce becomes final. The payments are typically part of the court's temporary orders that the parties must abide by until the final divorce decree.
"Permanent alimony" is support that is paid until the death of the spouse receiving the payments, or until her remarriage. Permanent alimony paid on a month-to-month basis is sometimes referred to as "periodic alimony." It is awarded to a spouse who does not have the capacity to support himself because of advanced age or disability.
In some cases, the court periodically reviews an award of permanent alimony. If the spouse receiving the payments regains the ability to work, remarries or begins living with someone else on a permanent basis, the court may terminate the payments.
SIDEBAR: Alimony is not awarded in community property states because it is regarded as an allowance that is the personal debt of the spouse. In those states, one spouse cannot owe another spouse support after a divorce. Instead, the payments are based on the rights the spouse receiving support has in the community property, which is owned by both.
EXAMPLE: A husband may be ordered to pay a wife $1,000 per month for 3 years after the divorce. The wife spent several years staying home with the children and her time is an asset she contributed to the community property. The support payments allow her to share in the assets since her time cannot be recovered.
"Rehabilitative support" or temporary alimony is routinely awarded by courts for the purpose of getting a spouse on his feet until such time as he is able to support himself. In most states, the payments are referred to as "spousal maintenance" and the law often limits the duration of the payments. Typically, the payments last for 1 to 5 years. Spouses with a decreased earning capacity, lesser education, fewer skills and fewer business opportunities generally receive some amount of payments for a time.
A lump sum payment is a one-time payment to an ex-spouse that fulfills any future support obligations. The payment can be calculated based on the number of alimony payments that would be due in the future, or may be based be a "cash-out" of one spouse's interest in the marital property.
If my ex-husband dies, is his new wife responsible for continuing my alimony payments?
No. Alimony payments end when the person paying dies. You have no further claim for alimony from your ex-husband's wife or his estate.
TIP: Take out a life insurance policy on your ex-spouse. The benefits will compensate you and replace the alimony payments in case of his death.
Do I have a right to alimony?
No. There is no legal right to alimony or post-divorce support. You must show the court that you qualify for spousal support after the divorce is granted.
How does the court determine if I will receive spousal support payments after the divorce?
The judge considers:
- the length of your marriage;
- your education and earning capacity;
- the age difference between you and your spouse, if any;
- your financial prospects or business opportunity available in the future;
- your health;
- the fault in causing breakdown of the marriage;
- your contributions as a homemaker; and
- your contributions to the other spouse's education, training or increased earning power.
I stopped practicing law to stay home and raise our children. Will my husband be ordered to pay support?
Probably not. Your education, skills and earning capacity most likely do not qualify you for support payments.
Do I have to work while I'm receiving support payments?
Not necessarily. If you are unable to work because of a disability, or if you are in the process of getting an education and training to obtain employment skills, you are not required to get a job. However, if you are able to work, you must be actively seeking employment to remain eligible for support payments.
I'm quite wealthy. Is there a limit to the amount of maintenance my ex-spouse can receive after our divorce is final?
Yes. Laws generally set a ceiling on the amount of maintenance that the court can award. For instance, the law in your state may prohibit payments that exceed 20 percent of your gross income.
SIDEBAR: Laws may set a maximum amount on spousal support payments, regardless of the paying spouse's income. For example, Texas law prohibits the court from ordering monthly support payments in excess of $2,500.
Can I have the amount of spousal support I receive increased?
Yes. You can ask the court to modify the support or maintenance payments any time there is a change in circumstances.
I've lost my job since our divorce. I was not awarded spousal support when the divorce was granted. Can I ask for it now?
No. The change in your circumstance does not "reopen" the issue of whether you are due spousal support. If you have been receiving some support, the court may increase the amount. However, the court will not begin instituting support payments.
Can my ex-husband have my alimony payments stopped if I am living with my boyfriend?
Yes. Although you are not married, the court may have the authority to terminate the payments if you are cohabiting with your boyfriend on a permanent basis.
TIP: A platonic roommate will not affect your support payments. The payments typically terminate only if you have a sexual relationship with the person.
SIDEBAR: Mere allegations that an ex-spouse is living with a person on a permanent basis are not enough to terminate support payments. There must be actual evidence to support the allegations. For instance, testimony from someone other than you that your ex-spouse moved her furniture to her boyfriend's house is evidence of the living arrangement.
I may be laid off in 6 months. Shouldn't the support payments that the court awards take this into account?
No. The court cannot base support payments on the possibility that an event may occur in the future.
TIP: Increases in property taxes, health insurance and other expenses that have increased in the past and will increase in the future may be taken into account in determining the amount of spousal support. Those events are not purely speculative.
During the 2 years it took to obtain a divorce, my husband provided me with only the bare minimum in support although he could have afforded much more. Will my alimony be increased as a result?
No. However, you may be entitled to retroactive alimony in the form of increased payments.
SIDEBAR: Courts award retroactive alimony dating back to the date the divorce was filed.
My wife has refused several promotions to keep her income down as well as her support payments to me. Is there anything I can do?
Yes. The court will assign or impute income to your wife if she is refusing to use her best efforts to earn more money.