alimony

Where a divorce or dissolution of marriage (civil union) is granted, either party may ask for post-marital alimony. It is not an absolute right, but may be granted, the amount and terms varying with the circumstances. If one party is already receiving support at the time of the divorce, the previous order is not automatically continued (although this can be requested), as the arguments for support during and after the marriage can be different.

Historically, alimony arose as a result of the indissoluble nature of marriage. Because divorce was rare, husband and wife remained married after their physical separation and the husband's obligation to support his wife continued. With the growing view that men and women should be treated equally the law recognized that both husbands and wives owed each other a similar duty of support. Accordingly, courts now may order either the husband or wife to pay alimony, though in practice it is virtually always the husband.

Some of the possible factors that bear on the amount and duration of the support are: (see below for more details on these)

• length of the marriage
• time separated while still married
• age of the parties at the time of the divorce
• relative income of the parties
• future financial prospects of the parties
• health of the parties
• fault in marital breakdown

Unless the parties agree on the terms of their divorce in a binding written instrument, the court will make a fair determination based on the legal argument and the testimony submitted by both parties. This can be modified at any future date based on a change of circumstances by either party on proper notice to the other party and application to the court. The courts are generally reluctant to modify an existing agreement unless the reasons are compelling. In some jurisdictions the court always has jurisdiction to grant maintenance should one of the former spouses become a public charge.

Alimony usually is synonymous, as a rule, with ex-husband payments to the ex-wife.

Alimony and child support compared

Alimony is not child support, which is another ongoing financial obligation often established in divorce. Child support is where one parent is required to contribute to the support of his or her children through the agency of the child's other parent or guardian.

Alimony is treated very differently to child support in the United States with respect to taxation. Alimony is treated as income to the receiving spouse, and deducted from the income of the paying spouse. Child support is not a payment that affects US taxes as it is viewed as a payment that a parent is making for the support of their own offspring.

If a party fails to pay alimony, there are not generally any special legal options available to the party that is owed money. In many jurisdictions, people whose child support obligations go into arrears can have licenses seized, in a few states they can even be imprisoned. Someone trying to recover back alimony can only use the collection procedures that are available to all other creditors (for example, (s)he could report the back alimony to a collection agency).

Factors affecting alimony

Length of the marriage

Generally alimony lasts for a term or period, that will be longer if the marriage lasted longer. A marriage of over 10 years is often a candidate for permanent alimony.

Time separated while still married

In some U.S. states, separation is a triggering event, recognized as the end of the term of the marriage. Other U.S. states (such as New Jersey) do not recognize separation or legal separation. In a state not recognizing separation, a 2-year marriage followed by an 8-year separation will generally be treated like a 10-year marriage.

Age of the parties at the time of the divorce

Generally more youthful spouses are considered to be more able to 'get on' with their lives, and therefore thought to require shorter periods of support.

Relative income of the parties

In U.S. states that recognize a 'right' of the spouses to live 'according to the means they have become accustomed', alimony attempts to adjust the incomes of the spouses so that they are able to approximate, as best possible, their prior lifestyle. This tends to strongly equalize post-divorce income, heavily penalizing the higher-earning spouse.

Future financial prospects of the parties

A spouse who is going to realize significant income in the future is likely to have to pay higher alimony than one who is not.

Health of the parties

Poor health goes towards need, and potentially an inability to support for oneself. The courts do not want to leave one party indigent.

Fault in marital breakdown

In U.S. states where fault is recognized, fault can significantly affect alimony, increasing, reducing or even nullifying it. Many U.S. states are 'no-fault' states, where one does not have to show fault to get divorced. No-fault divorce spares the spouses the acrimony of the 'fault' processes, and closes the eyes of the court to any and all improper spousal behavior.

Tax consequences of alimony in the United States

According to Section 71 of the US Internal Revenue Code, alimony must be included in the recipient’s gross income and can be excluded from the payer’s gross income. To qualify as alimony the payments must meet the following five conditions:

• The payment is a cash payment
• The payment is received by a “divorce or separation instrument”
• The instrument does not specify that the payments are not for alimony
• The payer and payee are not members of the same household when the payments are made
• There is no liability to make the payments for any period after the death or remarriage of the recipient

These requirements apply whether the parties enter an agreement that is approved in an order of the Court (contractual alimony) or the Court orders alimony after a contested trial (statutory alimony). See, for example, Post-Divorce Alimony in Texas.

A divorce or separation instrument is defined as a decree of divorce or separate maintenance or a written instrument incident to such a decree, a written separation agreement, or a decree requiring a spouse to make payments for the support or maintenance of the other spouse.

Child support must be included in the payer’s gross income and can be excluded from the recipient’s gross income. Child support payments are payments that are allocated to the support of the minor children of the pair. If the amount of the alimony payments would be reduced in the event of the age, death, or marriage of the child, this contingent amount would be considered child support.

Section 215 of the Internal Revenue Code allows the alimony payer to take a tax deduction for any alimony or separate maintenance paid during the year. The payer’s deduction is tied to the recipient’s inclusion of alimony.

Together Sections 71 and 215 act as an income-splitting device. Because of this, collaborative divorce processes such as mediation may allow special tax-saving alimony planning opportunities. See, for example, Mediation's Power in Alimony Cases.

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