Alimony
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In many countries alimony, maintenance or spousal support is an obligation established by law that is based on the premise that both spouses have an absolute obligation to support each other during the marriage (or civil union) unless they are legally separated, though in some instances the obligation to support may continue after separation. 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 (civil union) is granted, either party may ask for post-marital maintenance (also known as alimony or spousal support). 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.
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 to 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.
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Alimony and child support
Alimony should not be confused with 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 and taxation
Alimony is treated very differently than 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.
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 has the advantage of sparing the spouses the acrimony of the 'fault' processes, and the disadvantage of closing the eyes of the court to any and all improper spousal behavior.
