Alimony is the payment of support to a spouse or former spouse who is financially dependent on the other spouse. It is ordinarily paid as a monthly amount and is usually taxable to the recipient as income and deductible from the taxable income of the payor-spouse*. In some cases, this is referred to as “maintenance.” Because the court has a great deal of discretion in determining the amount and duration of alimony, the resolution of this issue may involve lengthy hearings or negotiations.
It is very important to keep in mind that, absent a properly prepared and executed settlement document, alimony rights are cut off when an absolute divorce judgment is entered by a judge, unless those rights are properly preserved in a prior legal action or in the legal action in which the absolute divorce is sought.
Factors for Determining Amount and Duration of Alimony
Once a spouse is determined to be financially dependent, several factors are considered in setting the amount and duration of alimony. The most important of these factors are economic considerations that reflect the needs of each spouse and supporting spouse’s ability to pay. These economic factors include the following:
1. The relative earnings and earnings capacities of both spouses;
2. The amount and sources of income of both spouses, including, but not limited to earnings, dividends, and benefits such as medical, retirement, insurance, and social security;
3. Standard of living of the spouses established during the marriage;
4. Relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support;
5. Federal, state, or local tax ramifications of the alimony award.
An additional set of factors to be considered relate generally to the fairness of the award. These include:
1. The ages and the physical, mental, and emotional conditions of both spouses;
2. The length of the marriage;
3. The contribution by one spouse to the education or increased earning power of the other spouse;
4. The relative education of the spouses and the time needed for a dependent spouse to obtain education or training needed to meet his or her economic needs;
5. Property brought to the marriage by either spouse;
6. Contribution of a spouse as homemaker.
Marital misconduct is an alimony factor. Behavior such as abandonment, a pattern of abuse and indignities, and drug use or excessive use of alcohol may be considered. Adultery that takes place prior to separation is misconduct that may bar an alimony award, if committed by the dependent spouse, or guarantee some amount of alimony if committed by a supporting spouse.
The court may make an alimony award for a specified or an indefinite time period. Alimony must terminate on the death of either party and on the remarriage or cohabitation of the dependent spouse.
*Any U.S. federal tax advice contained in this Web site is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.