Alimony

Alimony, maintenance, or spousal support is an obligation established by law based on the premise that both spouses have an absolute obligation to support each other during their marriage (or civil union).

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. When divorce became more common, many societies continued to recognize the need for the wife to be supported, at least for a time, when the marriage was terminated.

With the growing view that men and women should be treated equally, at least in Western society, 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, although in practice it is more often the husband. Alimony can be understood as an effort by society to ensure that those whose marriage breaks down receive a degree of financial support. While this is a valuable measure, and has enabled many to move on and lead successful lives following divorce, it has often proved burdensome to those required to make large payments for a considerable time period. Unless a solution can be found to divorce, however, the right to receive alimony remains an essential component of the proceedings.

History

The practice of alimony has deep roots in history. Alimony is among the rules regarding marriage written about in the Code of Hammurabi. Under the code, if a couple divorced, the man was obligated to return the dowry, grant his ex-wife custody of any children from the marriage, and give her an allowance to sustain her and the children until they were grown. If the couple did not have children, the man was obligated to return the dowry and pay his wife the equivalent of a bride price. If the wife had violated any number of traditions, the husband could be entitled to keep the dowry and children or even relegate his ex-wife to slavery.

Alimony is also mentioned in the Code of Justinian, which later became the basis for Roman law and British common law. This code discusses alimony in the context of marriage by habit and repute, in which couples are considered legally married and entitled to any rights or privileges stemming therefrom despite not formalizing their union.

How alimony is granted

Once dissolution proceedings commence, either party may seek interim or pendente lite support during the course of the litigation. Where a divorce or dissolution of marriage (or 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.

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. However, 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 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 from 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 U.S. 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 no special legal options available to the party that is owed money. In many jurisdictions, however, people whose child support obligations go into arrears can have licenses seized, and in a few states they can even be imprisoned. On the other hand, options for recovering back alimony are limited to the collection procedures that are available to all other creditors (for example, they could report the back alimony to a collection agency).

Factors affecting alimony

Some of the factors that bear on the amount and duration of the support are:

• 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 ten 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 two-year marriage followed by an eight-year separation will generally be treated like a ten-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 equalize strongly 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. (NOTE: Ohio is a no-fault divorce state).

Prenuptial agreement

A prenuptial agreement is a contract entered into by two people prior to marriage. The content of a prenuptial agreement can vary widely, but commonly includes provisions for the division of property should the couple divorce and any rights to alimony during or after the dissolution of marriage. The intention of the prenuptial agreement can be questionable, as it appears to imply a lack of trust and/or commitment to the marriage.

Laws around the world vary in their recognition of such agreements. Historically, judges in the United States frowned upon prenuptial agreements as corrupting what marriage was supposed to stand for. Nowadays while recognized, they may not always be enforced. It is common to have legal advice to the effect that both parties should have lawyers present during the signing, for a judge to ensure that neither party has been coerced into the agreement. Prenuptial agreements are, at best, a partial solution to obviating some of the risks of marital property disputes and obligations of burdensome alimony payments.

Alimony in the United States

According to Section 71 of the U.S. 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).

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.

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, which must be included in the payer’s gross income and can be excluded from the recipient’s gross income.

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.

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