2013 October

All About Alimony

Posted by | Family Law | No Comments

A spouse who requires assistance after a divorce may, under certain circumstances, receive alimony from the other spouse provided that the other spouse has the ability to pay.  Alimony is intended to preserve the economic status for both parties as it existed during the marriage.  Payments might be made in a lump sum amount (“alimony in gross”) or in periodic payments for a specified number of years (“periodic alimony”).   “Rehabilitative alimony” is sometimes awarded for a short period  and is designed to help a spouse transition back into the job market.

Alimony may be broadly defined as the money paid by one ex-spouse to the other for support under the terms of a court order or settlement agreement following a divorce. Except in marriages of long duration (ten years or more) or in the case of an ailing spouse, alimony usually lasts for a set period of time.  There is also generally the expectation that the recipient spouse will, at some point, become self-supporting. Alimony is sometimes also referred to as “spousal support” or “maintenance.”

It is particularly important that you be represented by Counsel who has substantial experience in the area of family and divorce law when there are contested issues of alimony in your case. Because the decision regarding your entitlement to (or obligation to pay) alimony falls solely within the discretion of the court, it is crucial that negotiations with opposing Counsel and/or the presentation of evidence to the court be undertaken on your behalf  by skilled legal Counsel. Contrary to popular belief, it is not always the husband who is ordered to pay alimony by the court.  

Three Basic Types of  Alimony

  • Alimony In Gross attempts to assign a present value to the spouse’s interest in marital property. Alimony in gross generally cannot be modified after the time for appeal from the original divorce decree has run.  Furthermore, remarriage of the receiving party does not entitle the paying party to reimbursement.  Additionally, the court does not have to consider the receiving party’s separate estate in determining the amount of alimony in gross to be awarded.  It is also important to note that there are generally no tax consequences to either party deriving from an award of alimony in gross.
  • Periodic Alimony is paid over time and is distinguished from alimony in gross as follows:  First, the stated amount of periodic alimony can be modified upon a showing of a “material change in circumstances” for either party after the divorce.  Second, periodic alimony may terminate upon remarriage or cohabitation of the receiving party or upon death of either party.  Finally, periodic alimony is tax deductible for the paying spouse and must be included as income for the receiving spouse.
  • Rehabilitative Alimony is financial support that is provided for a short period of time in order to allow the receiving spouse time to establish him/herself financially. This type of alimony will allow the receiving spouse the means to “rehabilitate” him or herself and become completely self-supporting.  In some cases, payment of rehabilitative alimony involves payment for educational or vocational training.

Factors Considered by the Court in Awarding Alimony

An award of alimony in Alabama is solely within the discretion of the trial court.  Alimony is generally awarded only upon a showing of need by one spouse together with a showing of ability to pay by the other spouse.  There is no statutory formula to be followed in order to determine the amount of alimony to be awarded (if any).  In making its determination, the court will consider the following:

  • The length of the marriage (rarely awarded in marriages of less than 10 years);
  • Dependency of one spouse upon the other for financial support during the marriage;
  • Each party’s respective earning ability and future earning prospects;
  • The ages and health of each party;
  • The value and type of property owned by the parties;
  • Conduct of the parties during the marriage (i.e., abuse, adultery);
  • Other factors the court deems relevant.

Termination of Alimony Upon Proof of Cohabitation

In Alabama, periodic alimony is subject to termination upon proof that “the spouse receiving such alimony has remarried or that such spouse is living openly or cohabiting with a member of the opposite sex.”  Code of Alabama (1975) § 30-2-55  The issue of whether a former spouse is “living openly or cohabiting with a member of the opposite sex” is a factual determination.   Accordingly,  factual evidence must be presented to the court in order to establish this fact. Factors to consider when determining whether or not a former spouse is cohabiting with a member of the opposite sex include, but are not limited to, the following:

  • Permanency of relationship (occasional sexual activity is generally not sufficient);
  • Payment of debts by former spouse’s cohabitant;
  • Purchase of gifts for former spouse by cohabitant;
  • Whether the alleged cohabitant maintains the former spouse’s household;
  • Receipt of mail by alleged cohabitant at former spouse’s residence;
  • Keeping clothes and other personal items at former spouse’s residence; and
  • Use of the former spouse’s address for identification purposes.

Termination of Alimony Upon Former Spouse Becoming Self-Supporting

Should the former spouse subsequently become self-supporting with income (and/or assets) equal to or greater than the income/assets of the paying spouse, alimony may be terminated in the discretion of the court.  However, such proof does not automatically result in termination in all cases.  Again, the discretion of the court (and the skill of your Counsel) are the determinative factors.

 Modification of Alimony Upon Proof of “Material Change in  Circumstances”

Upon the happening of a material change in circumstances of one or both parties after the divorce, periodic alimony may be modified.  The burden of proving the material change is on the Petitioner and factors to be considered include, but are not limited to, the following:

  • The remarriage of the paying spouse;
  • The receiving spouse’s employment since the divorce;
  • The financial status and needs of the receiving spouse;
  • Whether the receiving spouse is presently capable of self-support;
  • The ability of the paying spouse to respond to the former spouse’s financial needs;
  • Whether there are dependent children;
  • Whether alimony was originally agreed upon;
  • Whether there has been a material change in the financial situation of either party;
  • The health, age, and education of the parties;
  • The earning ability of the parties and their probable future prospects;
  • The duration of the marriage;
  • The conduct of the parties;
  • The length of time separating the initial alimony award and the modification hearing; and,
  • Any other material and relevant circumstances as disclosed by the evidence in a particular case.

Not every one of the above factors are of equal importance and each case is decided on its own facts.  It is important to note that, in a situation where the payor of periodic alimony files a petition to modify or terminate alimony and the recipient makes no request for an increase, the fact that the recipient is unemployed or underemployed is irrelevant.

Effect of Bankruptcy Filing by Paying Spouse

Alimony obligations are non-dischargeable by the paying spouse pursuant to the United States Bankruptcy Code.