Alimony

Alimony is a payment made by one ex-spouse to another to support them during the divorce proceedings and thereafter.  Historically, alimony was characterized as a payment designed to help the dependent spouse maintain the standard of living or the lifestyle which she or he became accustomed to during the course of the marriage.  To maintain this standard of living, alimony therefore provides the necessary money to assist the dependent spouse to pay living expenses, including housing, food and other necessities, and sometimes insurance payments.  Alimony is often referred to as “spousal support” or “maintenance,” but these terms often have different meanings under certain specific state laws. It’s best to seek the counsel of an alimony attorney to discuss your options.

At least six different kinds of alimony are recognized around the country:

  1. Temporary Alimony. This is sometimes referred to as alimony pendent lite, referring to payments that are made “pending the litigation.”  A court order for alimony pendent lite requires one party to make temporary alimony payments to another party while the divorce case is still pending, and/or while the parties are separated but have not yet pursued a divorce action.  In general, temporary alimony orders remain in effect until the court enters a permanent alimony order or a different alimony order at the conclusion of the case.
  2. Rehabilitative Alimony. This kind of alimony provides support for a dependent spouse who may have left the labor force to get married or raise children and who requires a certain amount of money to “rehabilitate” herself or himself and return to the workforce.  Rehabilitative alimony essentially provides financial support while a spouse completes her education or her job training and engages in the job searching process.  Rehabilitative alimony rarely lasts for more than five years.
  3. Limited Duration Alimony. Like rehabilitative alimony, limited duration alimony is paid to a dependent spouse for a fixed period of time.  By its very terms, limited duration alimony will be ordered for only a limited duration – for a specific term, after which it expires and there are no further payments.  Limited duration alimony is sometimes also referred to as “term alimony.” Unlike rehabilitative alimony, however, limited duration alimony does not require a spouse to “rehabilitate” herself or himself or embarking on a job search.  It is simply alimony paid for a limited period of time.
  4. Reimbursement Alimony. This kind of alimony requires a regular payment to be made by one ex-spouse to another for the purpose of reimbursing a spouse who paid for the other’s higher education, school-related educations costs, work training or certification, for example, a spouse who funds her husband’s medical school education and preparation for the board exams may be entitled to reimbursement alimony for the funds expended by her.
  5. Lump Sum Alimony. In some cases, a court will order, or the parties will agree to, a one-time single lump sum payment of alimony.  This kind of payment, sometimes referred to as alimony in gross, is sometimes appropriate in cases where the recipient spouse is not receiving any property or a sufficient amount of property to make the divorce equitable.
  6. Permanent Alimony. This kind of alimony requires the paying spouse to make alimony payments for as long as he or she lives or as long as the recipient spouse lives.  Because it is permanent, this kind of alimony continues indefinitely and cannot be stopped without a court order.  Some states, however, eliminated permanent alimony in favor of long-term alimony awards tied to a specific event as the paying spouse’s retirement, or a specific number of years.

When alimony has been ordered indefinitely, or for any fixed period of time, it can be terminated as soon as one party dies, or as soon as the recipient spouse is re-married.  In many cases, if the recipient spouse begins cohabiting with another person, the court will terminate alimony or at least permit a hearing to determine that alimony should be terminated.  Where such hearings are held, the critical question is whether, and to what extent, the recipient spouse is being supported by her new cohabitant.

The factors which a court will consider in awarding alimony vary widely.  However, the most common factors considered by various state courts include the following:

  • The actual need and ability of the parties to pay;
  • The duration of the marriage or civil union;
  • The age, physical and emotional health of the parties;
  • The standard of living established in the marriage or civil union and the likelihood that each party can maintain a reasonably comfortable standard of living, with neither party having a greater entitlement to that standard of living than the other;
  • The earning capacities, educational levels, vocational skills, and employability of the parties;
  • The length of absence from the job market of the party seeking maintenance;
  • The parental responsibilities for the children;
  • The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of training and employment, and the opportunity for future acquisitions of capital assets and income;
  • The history of the financial or non-financial contributions to the marriage or civil union by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;
  • The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;
  • The income available to wither party through investment of any assets held by that party;
  • The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment;
  • The nature, amount, and length of pendente lite support paid, if any;
  • How long the couple has been separated;
  • The gender of the party seeking alimony;
  • The past relations and conduct of each of the parties;
  • Marital fault or misbehavior by either of the parties;
  • The circumstances that contributed to the estrangement of the parties;
  • The eligibility of each party to receive retirement benefits;
  • Any agreement that may exist between the parties with respect to support, maintenance or alimony;
  • Whether an alimony award would cause a party to become eligible for medical assistance or other government benefits earlier than would otherwise occur, or whether the absence of such an award would do so.

Alimony is a complicated area of law which also involves tax and insurance consequences.  For example, many kinds of alimony are deductible by the person paying the alimony but taxable to the person receiving the alimony.  A person receiving alimony may also negotiate for, or file a petition for, an order requiring the paying spouse to buy life insurance.  A life insurance policy would guarantee that an obligation is fulfilled in the event that the paying spouse dies prematurely.

Mark S. Guralnick is an alimony specialist, having written a handbook for lawyers in this field, and having spent more than 30 years assisting clients on all sides, and on all aspects, of the alimony issue.  If you have any questions or concerns, please do not hesitate to contact our alimony attorney at the Law Offices of Mark S. Guralnick.

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