Divorce: Alimony

I once had a law professor say that he would never allow his daughter to get married without a legal form called a prenuptial agreement. He said the true test of a perspective son-in-law's love was "the boy's" willingness to agree not to take anything that didn't belong to him should the marriage break up. I responded that some would argue the true test of love is one's willingness (i.e. his daughter) to gamble that the marriage will never break up by not signing a prenup.

In any case, if you do not sign a prenuptial agreement and your marriage ends in divorce chances are the topic of Alimony (a/k/a Spousal Support) will need to be addressed. The purpose of alimony is to assist the unemployed or lower earning spouse weather the unfair financial consequences of divorce by requiring the higher earning spouse to provide a continuing income for his or her former spouse. This is very often the most contentious part of divorce as both spouses battle to prove how little or great their incomes are for purposes of determining if alimony should be paid and who should be required to pay alimony.

Determining Alimony
Alimony and Child Support are two completely different issues and, in most states, are treated very differently. Child Support is usually determined using specific statutory guidelines based on a breadwinning parent's income. Check out my article on Child Support for more information.

Alimony, on the other hand, does not rely on uniform statutory guidelines. Instead, courts have broad discretion in determining whether, how much and how long Alimony is to be awarded. Many state statutes provide factors for a court to consider in determining Alimony. Courts are usually not mandated (but encouraged) to use the following factors:

(1) The standard of living established during the marriage;
(2) The duration of the marriage;
(3) The age and the physical and emotional condition of each party;
(4) The financial resources of each party, the nonmarital and the marital assets and liabilities distributed to each;
(5) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party;
(6) All sources of income available to either party; and
(7) When applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.

The above factors are just some of the factors a court may look at in determining Alimony.

Types of Alimony
There are several types of alimony a court may award depending on the immediacy and type of need. These include (1) Temporary Alimony; (2) Rehabilitative Alimony; (3) Permanent Alimony; (4) Reimbursement Alimony; and (5) Lump-sum Payment Alimony.

Temporary Alimony is alimony awarded while the parties are separated pending final divorce. This type of alimony is common where one spouse has no source of income and the breadwinning spouse has refused to support his or her spouse.

Rehabilitative Alimony is alimony awarded to a no income or lower income spouse to allow him or her to seek employment training or otherwise learn to increase his or her earning power until he or she can be self-supporting. Rehabilitative Alimony is usually for a fixed time period (i.e. until the kids are 18, etc.).

Permanent Alimony is alimony awarded without a set time for termination. Permanent Alimony usually terminates upon when either the paying or receiving spouse dies, or the receiving spouse remarries. Permanent Alimony may also terminate if the receiving spouse cohabitates for a certain length of time and the cohabitating partners substantially share the burden of day to day expenses.

Reimbursement Alimony is alimony awarded to reimburse one spouse for expenses incurred by the other. This type of alimony might be awarded when one spouse supports the other through college and the divorce occurs shortly after graduation. The supporting spouse might be awarded Reimbursement Alimony as compensation for the support given to his or her spouse.

Lump-sum Payment Alimony is alimony awarded in one or a series of fixed payments required to be made no matter what circumstances might arise. Lump-sum Payment Alimony is usually not affected by the death or remarriage of either spouse. Lump-sum Payment Alimony is usually used to avoid making the paying spouse have to sell his or her property and divide the proceeds.
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