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Spousal Support or Alimony

Spousal Support or Alimony

Alimony or spousal support refers to payments made to one spouse from the other after a divorce. The family court considers situations where the spouses have unequal earning power and have been married for a long time. A judge also assesses one spouse's financial need and whether the other spouse has the ability to pay alimony. The purpose of alimony is to equalize the financial resources of a divorcing couple. 

However, it is important to know that spousal support is not automatic and it is not ordered in every divorce. In some cases, the judges may award temporary spousal support while the divorce is pending. Alimony is the payments made from one spouse to another after a divorce. In comparison, child support is the payments made for the child in the marriage under 18, to sustain their daily essential needs such as healthcare, education and housing

How Does Alimony Work?

There are different types of alimony payments that can be ordered by the court. For instance, if an alimony is ordered by the court, it can be in the form of a lump-sum payment, a property transfer, or periodic monthly payments. Periodic alimony awards are the most common and require one spouse to pay a certain amount to the other each month. The other spouse is usually the one that does not earn or is the spouse that needs to be financially supported.

Next, the lump-sum alimony awards and alimony in the form of a property transfer are generally non-modifiable, meaning they cannot be changed later and cannot be terminated or undone.

For a periodic or monthly alimony award there will be an end date set by the judge, or it may terminate when one of the following events occurs:

  • The supported spouse remarries;
  • The supported spouse cohabitates;
  • Either spouse dies or;
  • A significant event occurs (paying spouse's retirement) such that a judge determines that alimony is no longer necessary.

As with many issues in your divorce, you and your spouse can reach an agreement about the amount and length of time the alimony will be paid. But if you are unable to agree, you will need to file a formal notice with a court requesting alimony. After reviewing your case, the court will schedule a hearing and after the hearing, a judge will set the conditions for you. It is important to keep in mind that completing an alimony hearing or trial will be costly for you in terms of time and money.

Divorce Alimony Rules

If you are the spouse requesting the support, the question of whether you qualify for alimony is usually determined by taking into account your own income or ability to earn if you are not currently employed. However, this is not necessarily what you are earning at the time you go to court, but it represents your earning potential.

For instance, if one spouse is trained as a medical doctor but took several years off to care for children and support the other spouse's career, a judge will examine that spouse's future earning potential. The spouse may need initial support to reenter the workforce, but not a long-term alimony award.

Following a divorce, you may also be required to make some changes in your life and work. For instance, if you have a part-time job that does not pay well, you may be required to attempt to find full-time employment in a higher-paying field. Courts can hire reporters to ensure that there is a good faith employment search and what the earning capacity of that spouse would be in the workforce.

Enforcing an Alimony Award

A spouse who is ordered to pay alimony in a divorce will need to make the payments when they are due. Alimony starts as soon as a divorce order requiring it is signed by the judge. A spouse who fails to make the required alimony payments can be held in contempt of court. This means the supported spouse can file a show cause action with the court against the spouse refusing to make alimony payments.

The court will set a hearing to determine the reason for payment delinquencies. Family law courts have various tools from their resources to enforce alimony payments. Therefore, the spouse not making the payments in accordance with the divorce decree could face fines and penalties.

Terminating an Alimony Award

Death of either ex spouse or remarriage of an ex spouse are the most common reasons for terminating spousal support. Some states permit for the reduction, suspension, or termination of alimony if the recipient starts living with another person in a romantic relationship. The payor must provide the court with adequate evidence that the payee resides with another party and both are generally recognized as a couple. Many states now recognize same-sex as well as heterosexual cohabitation. Other reasons for termination include the recipient becoming self-supporting through employment or receipt of other financial support.

Moreover, the payor may request the court to terminate alimony by providing evidence a condition exists that would terminate support payments automatically. Another option is that the payor could prove that the continuation of alimony would be a financial hardship or unfair treatment. However, keep in mind that it is challenging to prove hardship or unfairness.

For example, the court will check for circumstances that prevent the payor from maintaining a normal standard of living. If the recipient needs an extension of alimony, he or she must request a modification before the agreement expires to be valid. If the payor proves one of the automatic termination conditions, the support stops permanently. 

Requesting Spousal Support

The procedures of requesting for spousal support will vary among the different states. In general, you can start a petition with the proper legal paperwork in family court. The family law court representative in your county may be able to help you with your paperwork. You and your spouse may also come to an agreement regarding spousal support but if you are unable to, the judge will make a decision about your eligibility. The judge will consider several factors and analyze them case by case.

Overall, there are three different types of alimony support. Depending on what is offered in your local state, you can request the court for that particular one that falls within your unique situation.

    • Temporary Support While Divorce is Pending – The non-earning spouse may be in need of immediate support after the separation of the couple; therefore the court may award temporary support while divorce is still being resolved in some cases. 
    • Short-Term and Rehabilitative Support– Judges order short-term support for short marriages. Short-term support lasts only a few years, and its precise ending date is set in the court order. Rehabilitative support means a specific kind of short-term support, designed to facilitate a dependent spouse in getting retrained and back into the workforce. It usually ends when the recipient is back to work. The recipient is held accountable for pursuing the training or course of study and then searching for work. 
    • Long-Term or Permanent Support – Permanent support may be granted after long marriages (more than ten years typically), if the judge decides that the dependent spouse most likely will not be able to go back into the workforce and will need support indefinitely. However, some states do not permit permanent support.

How Does the Court Determine Whether to Grant Spousal Support?  

The judge will look at all of the relevant factors in your situation. The law states that those factors include:

  • The ability to support oneself;
  • Necessary time to acquire a job or get training to become employed;
  • The standard of living established during the marriage;
  • Length of the marriage;
  • Circumstances leading to the separation;
  • Each party's age;
  • Physical and mental condition of each party;
  • Ability of the spouse paying alimony to support him or herself while making payments and;
  • Other financial responsibilities and resources of each party such as: previous awards of child support, financial obligations of each party, rights of each party to receive retirement benefits, and taxability or non-taxability of income.

Alimony may be paid in one lump sum or on a temporary or permanent basis. The court typically will consider the circumstances of each partner when deciding on how much and how long assistance is needed.

What Should I Do if I Have Been Ordered to Pay Spousal Support?

The first step you should take is to check your alimony agreement and court order to be aware of the situation. Most marital settlement agreements and or court divorce judgments contain provisions that define the terms of alimony payments, about how much will be paid each month and when the payments are due. 

If for some reason you cannot make a payment and need to modify the alimony order, you will need to show a change in circumstances to obtain a new alimony order. It is important to make the payments as ordered in the agreement to avoid future exposure to liability. It is recommended to seek out a family law attorney to advise on any issues that may arise due to disagreements for the alimony order. 

How Much Spousal Support Could I Get?

There is no fixed amount for alimony support. It all depends on the income each spouse makes and how they are able to reasonably support both the alimony payment along with child support. Generally, family courts look at: 

  • Monthly income of each spouse 
  • Reasonable day-to-day expenses 
  • Whether an alimony award from would still sustain the standard of living established during a marriage. 

The Uniform Marriage and Divorce Act, on which many states' spousal support statutes are based, suggests that courts consider the following factors in making decisions about spousal support awards:

  • The age, physical condition, emotional state, and financial condition of the former spouses;
  • The length of time the recipient may need for education or training to become self-sufficient;
  • The couple's standard of living during the marriage;
  • The length of the marriage; and
  • The ability of the payer spouse to support the recipient and still support himself or herself.

As is frequently the case, if there is not enough money to make it possible for the parties to reestablish something close to their marital standard of living, then most judges will look for a way to make the divorcing parties share the financial burdens equally. 

Unpaid Spousal Support

One of the first consequences when a spouse does not comply with the court order may be to ask the court for enforcement. This happens through contempt of court proceedings. The recipient spouse may show evidence that the other spouse is not complying with the court order. He or she may be able collect bank statements that demonstrate that payments have not been made. Furthermore, they should show that only partial payments were made or the payments were not made in time. Some states allow the judge to order jail time if the other spouse is found in contempt of court.

Some spousal support awards include an income withholding order which allows the employer to withhold the ordered amount of spousal support from the spouse's paycheck. The employer then sends this amount to the spouse directly. This is often an effective way to guarantee the payment is given to the spouse. Another way to receive spousal support can be to initiate a lawsuit against the spouse who is not paying. But before filing a lawsuit, you may be able to mediate the legal issue and reach a new agreement.

Spousal Support Fraud

Spousal support fraud refers to a situation in which a person intentionally presents false information in relation to spousal support payments. This could present in a wide variety of ways. The party poised to receive spousal support payments may commit fraud in order to obtain a higher amount of money each month. Additionally, the paying party may commit fraud in order to pay less each month.

Some of the most common examples of spousal support fraud include:

  • Falsifying income levels;
  • Providing fraudulent tax information;
  • Hiding assets during a divorce trial;
  • Intentionally placing an incorrect value on property or assets; and
  • Lying or making misrepresentations on the income and expense report provided to the court.

Spousal support fraud may be proven by using a number of different sources. These sources commonly include:

  • Prior support statements;
  • Tax returns;
  • Income and bank statements;
  • Pay stubs from work;
  • Shopping or travel receipts;
  • Witness statements; and
  • Admissions from either party.

Legal penalties for spousal support fraud can include payment of damages, or criminal penalties associated with other types of fraud. Such penalties could include criminal fines and/or jail time.

What Else Should I Know About Spousal Support?

In order to file for spousal support, you will need to file a petition for alimony with the court. Most states include this petition as part of the original petition for divorce, and your spouse will need to be served the notice for spousal support. Should your spouse not consent to the spousal support requested, the court will then determine whether you should be granted your request by considering the following:

  • Whether the couple was legally married;
  • The length of the marriage;
  • Each spouse's current and future earning potential;
  • Each spouse's financial contribution to the marriage;
  • Child custody considerations; and
  • The age and health of each party.

Spousal support amounts are calculated on a state by state basis. This means that the way spousal support is calculated will depend on your state's laws regarding divorce and spousal support. Some states consider fault when determining whether to grant a divorce, but it isn't always a factor when the court is determining spousal support awards.

Spousal support orders can be modified, although you should continue to make your court scheduled payments until the court has determined whether to modify the order. Modification begins by petitioning the court and showing that you are entitled to the modification, based on some substantial change in circumstances since the order was first issued. Some common examples of a substantial change in circumstances include:

  • The paying spouse has been laid off from their job and no longer has income with which to make payments;
  • The paying spouse is now retired;
  • The receiving spouse is now earning a significant increase in income;
  • The receiving spouse remarries; or
  • The paying spouse has become disabled.

A spousal support order may be terminated naturally, such as when the spouse in a permanent spousal support arrangement dies, remarries, or cohabitates with a new partner. In other arrangements, the court will terminate the order once it has been determined that the spouse no longer requires financial support in order to be stable.  

When Should I Contact a Lawyer About My Issues with Spousal Support?

If you have been ordered to pay alimony or receive alimony payments, issues may arise regarding the amount to be paid and when. Since laws change depending on the state, it is crucial to determine what your local state's stance is on the issue of alimony. It is important to seek out an experienced local family law attorney in your state to guide your process in determining a fair and just alimony support figuration.

Proving spousal support fraud can be a difficult task, due to the fact that it is commonly difficult to detect in the first place. Therefore, if you believe you have a case for spousal support fraud, you should consult with a skilled and knowledgeable family lawyer.  An experienced family lawyer can help you determine whether or not the spousal support fraud has occurred, and file a legal claim on your behalf. Finally, they can represent you in court as needed.

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