Alimony, Spousal Support and Maintenance

Alimony, also known as spousal support or maintenance, is an obligation of financial support paid by one spouse to the other. 

There are basically three types of alimony.  Permanent alimony is an allowance for support and maintenance (for example clothing, shelter, food or other necessities) of a spouse.  A marriage of over ten years is often a candidate for permanent alimony.  If permanent alimony is requested, it must be proven that there is a need for support and the other spouse has adequate means and the ability to provide for part or all of the need.  Permanent alimony is generally reserved for long-term marriages.  Reimbursement alimony is intended for spouses who have supported their partners through years of advanced schooling.  Rehabilitative alimony is designed for spouses in shorter marriages who need some assistance reestablishing themselves in the job market and who have a specific vocational plan.

The factors the courts consider differ on a state to state basis. Some of the possible factors that weigh on the amount and length of the support are:

1. Length of marriage
2. Time separated while still married
3. Age of the parties at the time of divorce
4. Income of the parties
5. Future financial prospects of the parties
6. Health of the parties
7. Fault in the marital breakdown

If the parties fail to agree on the terms of their divorce, the court will make a fair determination based on the legal argument as well as the testimony submitted by both parties.  Modification can occur at any future date depending on a change of circumstances by either party on appropriate notice to the other party as well as application to the court.  The courts are generally reluctant to modify an existing agreement unless there are compelling reasons.
Alimony must be included in the recipient’s gross income and can be excluded from the payer’s gross income.  In order to qualify as alimony, the payments must meet the following five criteria:

1. Payment is in cash.
2. Payment is received by a divorce or separation instrument.
3. The instrument does not specify that the payments are not for alimony.
4. The payer and the payee are not members of the same household when payments are made
5. There is no liability to make payments for any period after the death or remarriage of the recipient..

Division of Property

Division of property between spouses is a difficult issue to resolve during a divorce.  There are two different systems in place that each state uses for property division: Community Property or Equitable Distribution.  No matter which system is used, each state has its own guidelines for dividing marital property.  You should seek legal advice from one of our experienced attorneys as this is a complicated area of family law.

Community Property

Community property is a system of property division in which all property is divided equally, regardless of whose name it is in, that was acquired during the duration of the marriage, not including inheritances and gifts in some jurisdictions.

There are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New
Mexico, Texas, Washington and Wisconsin.  In these states, property that was acquired prior to the marriage stays with the party who acquired it.  Although some community property states permit equitable distribution where justice is served, rules vary state to state and are filled with exceptions.

Equitable Distribution

In equitable distribution states, all property, whenever or however acquired, regardless of legal title, is subject to equal or unequal division.  “Equitable” does not mean equal.  Courts strive for a fair division between the parties and take into consideration several factors to make that determination.