Alimony and Spousal Support Law
Under the rather large umbrella of family law is alimony and spousal support law. When a couple divorces, alimony and spousal support law involves the provision of financial support from one spouse in a divorce or separation to the other spouse. Alimony is not automatic and must be requested during the divorce or separation proceeding.
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UPDATED: Aug 19, 2021
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- Alimony is a form of financial support that is paid by one spouse to another during separation or after a divorce
- Alimony is ordered based on a number of factors, including each spouse’s contributions to the marriage and ability to earn an income
- Alimony is usually temporary and can be paid in a lump sum or through monthly installments
There are several types of alimony that can be obtained. In previous years, alimony was often permanent. However, now most individuals only receive this assistance for a limited time.
An attorney can help you understand more about family law, the types of alimony that can be sought, and provide a number of services focused on ensuring that the alimony ordered in your case is fair and the provisions of this alimony are clear and enforceable.
Use our free search tool to search for an affordable family law attorney in your area today.
What is alimony and spousal support law?
Alimony and spousal support law is a part of family law that deals with the ability of each spouse to be financially independent following the termination of their marriage.
The purpose of alimony is to provide “reasonable and necessary” support to one spouse from a spouse who is financially able to provide it.
In the past, spousal support was usually ordered to a wife who had decided to forego her education or career in order to raise a family. This alimony was paid until the woman was able to remarry, or was even permanent depending on the state in which the divorce took place and the facts of the case.
Recent years have brought a lot of changes to how marriages in the U.S. operate, including a greater number of women in the workplace. Because of this, it is not uncommon to see divorced women paying alimony to their former spouse, including temporary alimony, so that one spouse has the opportunity to get back on his or her feet.
What are the different types of alimony?
There are several types of alimony that can be considered in order to provide a divorcing spouse with the assistance he or she needs to be financially independent after the marriage has ended, including:
- Rehabilitative Alimony: This type of spousal support is ordered when one spouse needs financial assistance from the other in order to obtain the job skills or education to become self-sufficient. This type of alimony is temporary, and generally subject to a review at the end of the specified time period to see if the receiving spouse has satisfied his or her rehabilitative goals.
- Lump-sum Alimony: This type of alimony generally involves one spouse providing a lump sum to the other spouse, usually in lieu of a property settlement. The benefit to the payee of paying alimony in a lump sum is that he or she will avoid a long, drawn-out obligation to his or her former spouse. Additionally, he or she will be protected from having the amount of alimony increased if his or her income increases.
- Permanent Alimony: This type of alimony is often ordered at the end of a long marriage in which one spouse greatly sacrificed his or her earning capacity in order to raise children and make the marital home. Permanent alimony generally lasts until either the receiving spouse remarries or until either the payer or the payee dies. This type of alimony can be modified as time goes on to reflect the current needs and financial situations of both spouses.
- Reimbursement Alimony: This type of alimony is ordered to repay one spouse for financial sacrifices that were made in order to support the other spouse’s education or job training. This type of spousal support is not based on the receiving spouse’s need as much as on paying them back for the sacrifice. The funds can be received in a lump-sum or in monthly payments, or property can be given to the receiving spouse in lieu of a monetary payment.
- Temporary Alimony: Also known as separate maintenance, temporary alimony is sometimes paid by one spouse to another when they have separated but the divorce is not yet final. Temporary alimony is provided through a written separation agreement that does not necessarily have to be filed in court. Temporary alimony can be modified as needs change. If the couple goes on to divorce, an amount of alimony can be ordered that is different than what the couples agreed to temporarily during separation.
When is alimony awarded?
Temporary alimony can be awarded by the court when the couple files for legal separation. However, because temporary alimony does not need to be filed in court, alimony payments can begin on a of the spouses’ choosing and in accordance with a written agreement signed by both parties.
Other types of alimony are generally ordered at the time of the divorce. There will be a stipulation in the official divorce order about when payments are to be made, including a deadline for when a lump-sum payment will be made as well as the date of monthly payments.
It is important to remember that alimony is not automatic. If you need it, you are required to ask for it before the divorce has been finalized.
Many divorcing spouses agree to a specific amount for alimony and those agreements are generally approved by the judge in the final divorce proceedings. However, if you are unable to arrive at an agreed-upon amount, you can request that the judge determine alimony in your case.
Is alimony available for men too?
Yes. Alimony can be paid to either spouse and is based on the standard of living that was established during the marriage, and each spouse’s ability to achieve that standard of living on his or her own. It is not unusual for a man to receive alimony from his former partner in a divorce for these reasons:
- He earns less than his wife
- He stays home with the kids
- His career suffered during the marriage
Can an alimony order be modified?
Alimony orders can be modified if there is a change in financial circumstances for either party. In order to reduce the amount of alimony that has been paid, the payer either needs to have the payee agree to the reduction, or must be able to show the court that they suffered a circumstance such as:
- An involuntary loss of employment or reduction in wages that makes the payer unable to pay the monthly alimony payment.
- An illness or disability that prevents the payer from having the ability to make alimony payments.
- The supported spouse has experienced an increase in income that deems him or her no longer in need of assistance.
- The payee has remarried or is cohabiting with a romantic partner.
It is important to note that alimony payments do not automatically end when the payee has remarried or is cohabiting. The payer must request the modification through the courts.
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What is the difference between alimony vs. spousal support?
Alimony and spousal support are both terms that are used to refer to the same thing. Alimony is a more archaic term, hearkening back to a period of time in which the payer was almost always a man and the payee was almost always a woman.
Spousal support is a more gender-neutral term that refers to the payment from one ex-spouse to another over a period of time. Other terms commonly associated with this type of payment include maintenance, spousal payments, or support payments.
How is the amount of spousal support calculated?
There is no set dollar amount that one spouse will have to pay to the other. The amount of alimony is unique to each divorcing couple’s situation, and is determined by considering these factors:
- Each party’s gross income and other financial resources
- The amount of marital property that each partner has received
- Reasonable financial need
Usually, the courts attempt to ensure that an individual will not be expected to live on 40% or less of his or her income after paying alimony and child support.
How is alimony determined?
Some of the factors that are considered when determining whether to order alimony and how much spousal support should be given include:
- Your financial resources, including any assets you own after the division of marital property.
- The duration of the marriage. Often, those in longer marriages are more likely to receive alimony than individuals who have only been married a matter of months or a few years.
- Each person’s earning capacity. It should be noted that earning capacity is different than income, as it refers to the amount a person can reasonably be expected to earn given their education and experience in a specific job field.
- If you are required to obtain any additional work-related education or training, and the expense and time that will be necessary to provide that education or training.
- The contribution each person made to the household or to the other’s career. This does not only refer to how much income each person brought in, but also if one spouse chose to delay their education so that the other could attend college, or opted to stop working to raise their children.
- The physical health of the recipient. Sometimes, an individual is not healthy enough to earn an income. Alimony considerations include not only the income each spouse earns, but whether there are factors that could place one spouse in financial peril without assistance.
Additionally, the alimony received at the end of a longer marriage will often be ordered to be paid for a longer period of time. Alimony after a marriage or civil union lasting more than ten years will generally be permanent.
Even permanent alimony can end when either the payer or payee dies or when the payee remarries or cohabitates with another romantic partner.
Generally younger spouses are believed to be more able to “get on with life” after the divorce and, therefore, are less likely to be awarded alimony for a long period of time.
What are the tax implications of alimony?
Is alimony taxable? Technically, yes. In previous years, the payer was permitted to deduct the amount of alimony or separate maintenance payments from his or her tax burden, and payees were required to report the receipt of alimony or separate maintenance payments as income.
However, this rule was changed in 2019 so that payers are no longer permitted to use the payments as deductions and payees are no longer required to report these payments as income.
Because of this change, alimony payments ordered and modified before January 1, 2019 are under the old rule, while divorces or modifications taking place after that date are under the new rule.
For payers who are still permitted to deduct the payment, they can only do so if the following conditions are met:
- The spouses don’t file a joint return with each other.
- The payments are made in cash, including checks or money orders.
- The payments are to or for a supported spouse in accordance with a divorce or separation instrument.
- The spouses aren’t members of the same household when the payment is made.
- There is no liability to make the payment after the death of the recipient spouse.
- The payment is not treated as child support or a property settlement.
The change in the law is generally beneficial for payees, who no longer have to report alimony as income or pay tax on it. Additionally, not being required to report the alimony as income will allow more supported spouses to meet the income eligibility requirements for a number of social programs.
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What happens if I refuse to make alimony payments?
Payers who do not make alimony payments as ordered can be found in contempt of court. Generally, if an individual is found in contempt of court for failing to honor an alimony order, he or she will first be ordered to pay the overdue support.
Sometimes, the payer will also incur a fine. However, these are not the only consequences for failing to pay alimony. Courts have other methods for enforcing alimony orders, including:
- Writ of execution: With this method, the missed alimony payments are resolved with the judge awarding you a portion of the payer’s bank account, CDs, or other assets.
- Judgment of interest: With this method, the judge awards you a judgement for the amount owed plus interest as well as attorney’s fees.
- Income withholding: This is a wage garnishment in which the payer’s employer is required to withhold the amount of spousal support due and either send it to a support enforcement agency or to the supported spouse
Wage garnishment will often begin automatically with the final divorce decree. However, in other cases, income will only be withheld in situations in which the payer has not been making payments as ordered. Income withholding is not an effective resolution to missed payments in situations involving a payee that is self-employed.
What is most often overlooked in alimony agreements?
Perhaps you and your spouse agreed to a specific amount of money for alimony during separation. While this certainly goes a long way in fasciliatating the receipt of alimony payments from one spouse to another, there are common mistakes made when making decisions about alimony that you should be aware of, including:
- Failing to properly calculate your income. Alimony is calculated by considering the net income (what you receive after taxes) of both spouses rather than the gross income (what you earned before taxes). Having a skewed income can result in paying far more than you can afford, or receiving far less than you need.
- Failing to match the alimony payments with the stated need. The courts cannot require one spouse to pay the other over and beyond what the payee is asking for. If more than the stated need is awarded without additional instructions explaining what the additional amount is being ordered for, the entire award can be reversed.
- The alimony award is not enough to afford the supported spouse the lifestyle that was established for both parties during the marriage. One of the main purposes of alimony is to ensure that both parties in the marriage are able to be financially independent in divorce and that neither party is shortchanged.
- Failing to request alimony before the final divorce orders have been issued. If you do not ask for the support during the divorce proceedings, you will be barred from seeking it at a later date.
- Voluntarily reducing your income in order to avoid paying alimony. If the court determines that one of the spouses is hiding assets or reducing income, the payer can be ordered to pay an additional sum over the amount of the payments that has been calculated through the evaluation of income and assets.
- Trying to get the most amount of alimony possible. The point of receiving alimony is to maintain your established lifestyle. Asking for an exorbitant amount of alimony that is over and beyond what you need will generally result in high legal fees for both parties.
- Failing to consult with an experienced family law attorney first. A lawyer understands how to calculate alimony and will ensure that your agreement is worded properly and enforceable in the future.
Another common mistake is deciding that a lump-sum payout makes the most sense, only to discover that it is hard to determine a fair lump-sum payout. Often lump-sums payouts involve far less money than monthly installments would.
Additionally, if you are the payer and your monthly alimony obligation happens to end early because your former spouse moves in with someone knew, it can be hard to take payments back after a lump-sum alimony.
Before you agree to a lump-sum payout, make sure you understand the implications of receiving or paying spousal support in this matter. Consulting with a local alimony and spousal support law attorney about your options can give you financial peace of mind.
When should I hire an alimony lawyer?
An experienced alimony lawyer can provide a number of services to help his or her client understand the process of receiving alimony or being ordered to pay alimony. These services include:
- The provision of objective advice: Your lawyer can help you turn your thoughts away from the demise of your marriage and into actionable items that can help you move toward the future.
- Accounting for income and marital assets: The amount of money you make and the assets both you and your divorcing spouse have are important factors in determining a fair amount for alimony. Your attorney will use his or her experience with the process to help you determine if you have properly calculated the income and marital assets so that an accurate alimony award can be established.
- Brainstorming alternatives to the traditional monthly alimony payment: Alternatives can include calculating a fair lump-sum payment, or dividing marital property in a way that alimony is not necessary.
- Mediation services: Spouses can negotiate the terms of spousal support payments with the assistance of a third party who will ensure that the agreement is fair to both parties and is written in a way that it is enforceable in the future.
- Preparing a written divorce agreement: Establishing an alimony agreement with clear and enforceable language in order to prevent problems from arising in the future regarding the amount of alimony you are to pay or receive, under what conditions, and for how long.
- Representing you in court: Like other types of civil court actions, spousal support orders are often hammered out through negotiations between the parties’ attorneys. However, some cases are not able to be resolved through an agreement, meaning that the court must decide on matters such as alimony. If your case must go to court for resolution, your attorney will guide you through that process.
Hiring an alimony and spousal law lawyer now means you can have continued representation if future issues arise. Your attorney can help you petition the court for a modification of your alimony, and can also assist you in pursuing the recovery of missed alimony payments through methods such as income withholding, writ of execution, or judgment of interest.
Do you need an alimony lawyer to help you with your separation or divorce? Use our free search tool to search for an affordable family law firm in your area.