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Alimony, maintenance or spousal support is an obligation established by divorce law or family law in many countries. This obligation is based on the premise that both spouses have an absolute obligation to support each other during their marriage (or civil union know as common law marriages). Alimony is the extension of the obligation to support after separation or divorce.
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The concept of modern alimony in the US derives from English ecclesiastical courts which awarded alimony in cases of separation and divorce. Alimony Pendente lite was given until the divorce decree, based on the husband's duty to support the wife during a marriage that still continued. Post-divorce or permanent alimony was also based on the notion that the marriage continued, as ecclesiastical courts could only award a divorce a mensa et thora, similar to a legal separation today. As divorce did not end the marriage, the husband's duty to support his wife remained intact.[1] The term alimony comes from the Latin word alimonia, and was a rule of sustenance to assure the wife's lodging, food, clothing, and other necessities after divorce.[2]
Liberalization of divorce occurred in the nineteenth century, but divorce was only possible in cases of marital misconduct. As a result, the requirement to pay alimony became linked to the concept of fault in the divorce.[3] Alimony to wives was paid because it was assumed that the marriage, and the wife's right to support, would have continued but for the misbehavior of husband. Ending alimony on divorce would have permitted a guilty husband to profit from his own misconduct. In contrast, if the wife committed the misconduct, she was considered to have forfeited any claim to ongoing support. However, during the period parties could rarely afford alimony and so it was rarely awarded by courts.[1] As men's incomes increased, and with it the possibility of paying alimony, the awarding of alimony increased, generally because a wife could show a need for ongoing financial support and the husband had the ability to pay.[1][4] No-fault divorce led to changes in alimony. Whereas spousal support was considered a right under the fault-based system, it became conditional under the no-fault approach.[4] Today, New York is the only state that has not adopted no-fault divorce law.[5] According to the American Bar Association, marital fault is a "factor" in awarding alimony in 25 states and the District of Columbia.[6] Permanent alimony began to fall out of favor, as it prevented former spouses from beginning new lives,[4] though in some states (e.g., Massachusetts, Mississippi and Tennessee), permanent alimony awards continued.[7][8][9][10] Alimony moved beyond support to permitting the more dependent spouse to become financially independent or to have the same standard of living as during the marriage or common law marriage though this was not possible in most cases.[1][11]
In the 1970s the United States Supreme Court ruled against gender bias in alimony awards, and the percentage of alimony recipients who are male rose to 3.6% in 2006.[12] In states like Massachusetts and Louisiana, the salaries of new spouses may be used in determining the alimony paid to the previous partners.[13] [10] Most recently, in several high profile divorces women such as Britney Spears, Victoria Principal and Jessica Simpson have paid multi-million dollar settlements in lieu of alimony to ex-husbands who were independently wealthy.[14][15] According to lawyers, men are becoming more aggressive in the pursuit of alimony awards as the stigma associated with asking for alimony fades.[16]
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 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 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 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 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.[17]
In many jurisdictions, people whose child support obligations go into arrears can have licenses seized; in a few states they can even be imprisoned. Someone trying to recover back alimony can sometimes only use the collection procedures that are available to all other creditors (for example, he/she could report the back alimony to a collection agency). In some states, if someone is unable to pay all of his or her alimony, he or she will be found in contempt of court and placed in jail.[18]
Neither the obligation to pay child support nor alimony is discharged as a result of the obligee filing bankruptcy.[19]
The determination of alimony varies greatly from country to country and from state to state within the U.S.[3] Some state statutes, including those of Texas, Montana, Kansas, Utah, Kentucky and Maine, give explicit guidelines to judges on the amount and/or duration of alimony. In Texas, Mississippi and Tennessee for example, alimony is awarded only in cases of marriage or civil union of ten years or longer and the payments are limited to three years unless there are special, extenuating circumstances. Furthermore, the amount of spousal support is limited to the lesser of $2,500 per month or 40% of the payee's gross income.[20][21][22] In Delaware, spousal support in usually not awarded in marrigaes of less than 10 years.[23] In Kansas, alimony awards cannot exceed 121 months.[23] In Utah, the duration of alimony cannot exceed the length of the marriage.[23] In Maine, Mississippi, and Tennessee alimony is awarded in marriages or civil union of 10 to 20 years and the duration is half the length of the marriage barring extenuating circumstances.[23] Other states, including Massachusetts, California, Nevada and New York have relatively vague statutes which simply list the "factors" a judge should consider when determining alimony (see list of factors below).[24][25][23][23] In these states, the determination of duration and amount of alimony is left to the discretion of the family court judges who must consider case law in each state. In Massachusetts, Mississippi, Texas and Tennessee, for example, there are 135 Appellate cases in addition to 47 sections of State Statute that shape divorce law. As a result of these Appellate Cases, for example, Massachusetts, Mississippi, Judges cannot order an end date to any alimony award. Most alimony awards in the states are made for life usually regardless of the length of the marriage or civil union (for marriages or civil unions over 10 years).[24][26]
In general, there are four types of alimony.[27]
Temporary Alimony: Support ordered when the parties are separated prior to divorce. Also called alimony pendente lite which is latin meaning "pending the suit".
Rehabilitative Alimony: Support given to a lesser earning spouse for a period of time necessary to acquire work outside the home and become self sufficient.
Permanent Alimony: Support paid to the lesser earning spouse until the death of the payor, the death of the recipient, or the remarriage of the recipient.
Reimbursement Alimony: Support given as a reimbursement for expenses incurred by a spouse during the marriage (like educational expenses).
Some of the possible factors that bear on the amount and duration of the support are:
| Factor | Description |
|---|---|
| Length of the marriage or civil union | Generally alimony lasts for a term or period, that will be longer if the marriage or civil union lasted longer. A marriage or civil union 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 to which 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. |
| 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 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. |
| Gender of the recipient | In general, women are more likely to be granted alimony than men, because, historically, men make more money than women, and are less likely to have gaps in employment due to childrearing. |
The following is a list of Alimony factors by state compiled by the American Bar Association[28]
Alimony is considered a controversial area of the law due to the lack of an accepted legal theory for why a spouse should continue to support their former partner after the marriage has ended.[4] The fairness of permanent alimony in America has been questioned and the rise of an alimony reform movement has been documented in several recent articles in the The Wall Street Journal, The New York Times, The Boston Globe, ABC News,and the Huffington Post and on National Public Radio.[29][30][31][32][33] Alimony is considered one of the greatest sources of litigation in family law cases.[4][8] Eighty percent of divorce cases involve a request for modification of alimony.[34] The unpredictability of alimony awards makes settlement of this issue difficult and erodes the credibility of the judicial system.[35] Divorce law in the U.S. was based on English Common Law, at a time when a woman gave up her personal property rights on marriage. Upon separation from marriage, the husband retained the right to the wife's property, but, in exchange, had an ongoing responsibility to support the wife after dissolution of the marriage.[3][4][9] Alimony continued after Married Women’s Property Acts (1848), permitted divorced women to regain the property they owned before marriage, and disputed the notion that the support after divorce should not be necessary.[4]
Alimony critics state that permanent alimony was originally conceived at a time (17th Century England) when the role of both men and women in the family and in the workforce was much different than today.[9] Legal experts and legislators question whether the laws governing alimony should be re-written to align better with the modern roles of men and women when so many women now work outside the home and earn good salaries.[36][30] It is argued that permanent or life time alimony awards no longer reflect the reality of modern marriage and socio-economic trends.[34] Some states (eg. Florida,Texas, Maine) are moving away from permanent alimony awards that are intended to maintain a spouses' standard of living enjoyed during the marriage and are moving towards durational or rehabilitative alimony.[30][37] In other states, like Mississippi, Massachusetts and Tennessee, alimony is usually awarded for life.[10]. Others argue that unlike the old concept of divorce "a mensa a thoro" (where the couple did not actually divorce, but lived apart and the husband continue to support the "wife"), divorce in modern society should represent a "clean break" where each party starts a new life (including remarriage) and does everything possible to become self-supporting.[38][39] Some have likened alimony to welfare, and argued that it is awarded in order to save public expense, and that the state should provide support to needy former spouses .[34]
Alimony is noted for lack consistency, varying widely from state to state and even within a jurisdiction.[4][40][41][42][23] In some states there are no statutory guidelines concerning support awards leading to wide inconsistency in the support awards given. The support guidelines available to judges in other states are criticized for being unclear, idiosyncratic and nonobjective, for leaving the actual monetary award to the judge resulting in inconsistency and potential unfairness.[4] Alimony activists argue that in certain states in the US that adopted "No Fault" divorce laws like Massachusetts, Mississippi, higher earning spouses are still required a to pay lesser earning spouses life time support.[10][24] In another no-fault state, Mississippi, Maine, Statute §951-A limits alimony for marriages or civil union between 10 and 20 years to a period equal to half the length of the marriage.[21] In Texas, another no-fault state, alimony Section 8.054 limits alimony (in marriages or civil union less than 20 years) to a maximum duration of three years.[43] Alimony reform proponents believe alimony should not be permanent, rather, transitional - allowing a spouse to become self sufficient.[10] Permanent alimony awards have been argued to be peonage or involuntary servitude, and thus in violation of the Thirteenth Amendment to the United States Constitution. However, the Supreme Court has not addressed this issue.[4][11]
Advocates of reform believe that the current vague state statutes combined with complex case law creates confusion for parting spouses about what level of alimony is fair and, thus, encourages lengthy, expensive legal battles.[4][8] Alimony payments can prolong the initial hostility from such battles - having profound implications for the financial and emotional well being of the parting spouses and their children.[44] Reform would create clear guidelines for divorcing couples to agree on alimony awards without requiring lawyers to interpret vague statutes or complex case law. However, many divorce attorney's see this as a threat to their divorce litigation incomes. Some divorce attorneys see a similar threat to their litigation incomes from collaborative law. Collaborative law is the use of tactics to bring couples to an amicable divorce agreement without litigation.[45] The most recent edition of the Massachusetts Divorce Law Practice Manual Section 4.5 states that the concern with Collaborative law is that it reduces litigation which is the most profitable form of legal practice. It goes on to state that clients who are satisfied with the collaborative approach recommend it to other divorcing couples - further reducing the prospects of lucrative litigation.[45] Surveys of the 50 US State Legislatures indicate that 15 to 20% of State Legislators are lawyers, many members of same national and local Bar Associations as divorce attorneys.[46]
The critical issues that proponents of the status quo and alimony reformists disagree on are 1) whether alimony should be temporary or permanent [30], 2) regardless of duration, should alimony payees have the unquestionable right to retire[47], 3) does the lesser earning spouse deserve alimony to meet his/her basic needs (sustenance) or to enough to sustain "the lifestyle accustomed to during the civil union or marriage",[30] and 4) should the income and assets of a new spouse be used in determining how much alimony gets paid.[10] The other major issue is how clear and prescriptive the new state statutes should be versus allowing a large degree of Judicial Discretion.[48]
In several US states, including Massachusetts, Pennsylvania, Oklahoma and New Jersey, lawmakers are attemping change of divorce laws as they pertain to alimony.[30] In Massachusetts in early 2009 a bill (HB 1785) backed by a group called "Mass Alimony Reform"[49] gained 72 state representatives as co-sponsors (of a total of 200 Representatives and Senators). HB 1785 would require a spouse receiving alimony to become self-sufficient after a reasonable time. It would establish alimony as a temporary payment instead of a permanent entitlement.[50] It would continue to protect those who are truly needy. This law would also address the ubiquitous issue of cohabitation[23] - where the alimony recipient is living with, but not married to significant other.[30] The bill supports the following alimony reform goals:
A second bill, in the state Senate (SB 1616), would modify the law only slightly by adding "duration" to the list of factors judges can consider when setting alimony payments (see Factors affecting alimony above). This bill was introduced by divorce attorney, State Senator Cynthia Creem of Newton.[52][10][53] In an unusual move, the Boston Bar Association (BBA) expressed support for SB 1616 Senate Bill.[54][55] In September 2009 the Massachusetts Judiciary Committee created a task force led by Representative John Fernandes and Senator Gale Candaras to review the bills and make a recommendation. [56]
California, Connecticut, Georgia, Illinois, Oklahoma, New York, South Carolina, Tennessee, Utah, and West Virginia have all passed laws that allow for the modification or termination of alimony upon demonstration that the recipient is cohabitating with another person.[57] In 2004, a Florida Senate bill was introduced requiring the termination of alimony if the recipient was cohabitating with another party. The House of Representatives did not pass similar legislation and the Senate Bill died in committee.[57] In April of 2008 the Women's Law Center of Maryland provided a free on-line software tool (The Kaufmann Alimony Guidelines) for the use of alimony litigants and lawyers to make alimony awards more reliable. The software takes into account length of the civil union or marriage; age of claimant; education and earning potential of the claimant; income of the parties; child care responsibilities to depict a relative financial picture of both parties in order to recommend an amount and duration for alimony.[58] In April of 2009, the Governor of New Jersey, Jon Corzine, signed into law changes in the alimony statutes for his state which would bar alimony payments to parents who kill, abuse or abandon their children.[59] In Pennsylvania,[60] Senate Bill 943 was introduced in June 2009. This bill would better define cohabitation and end alimony in these cases. The bill would allow the court to consider awarding one year of alimony for every three years of civil union or marriage and would direct the court to consider indefinite alimony in civil union or marriages of 10 years or more.[61] In Ohio, the Ohio State Bar Association has introduced legislation that would also put a time limit on alimony. For example, the new Ohio law would limit alimony to 7 years in the case of a 15 year marriage.[30] Also in 2009, Oklahoma lawmakers are considering legislation (HB 1053) that would treat military retirement pay as alimony, not propert (alimony ends when the recipient remarries in Oklahoma).[62] Activists are seeking alimony reform in Arizona, Georgia, and North Carolina.[30]
The fathers' rights movement and the alimony reform movement are both concerned with gender inequity issues particularly in the family court system .[30][63]
Alimony is a type of obligated spousal support that is established by law in many countries and 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. In some instances the obligation to support may continue after separation.
ALIMONY (from Lat. alere, to nourish), in law the allowance for maintenance to which a wife is entitled out of her husband's estate for her support on a decree for judicial separation or for the dissolution of the marriage. Though, as a rule, payable to a wife, it may, if the circumstances of the case warrant it, be payable by the wife to the husband. Alimony is of two kinds, (a) temporary (pendente lite), and (b) permanent. Temporary alimony, or alimony pending suit, is the provision made by the husband for the wife in causes between them to enable her to live during the progress of the suit, and is allowed whether the suit is by or against the husband and whatever the nature of the suit may be. The usual English practice is to allot as temporary FIG. 9. - Intestinal Tract of Gorilla. S, cut end of duodenum; R, cut end of rectum; C, vermiform appendix of caecum; X, X2, X3, cut ends of factors of the portal vein.
alimony about one-fifth of the husband's net income; where it appears that the husband has no means or is in insolvent circumstances, the court will refuse to allot temporary alimony. So where the wife is supporting herself by her own earnings, this fact will be taken into consideration. And where the wife and husband have lived apart for many years before the institution of the suit, and she has supported herself during the separation, no alimony will be allotted. Nor will the wife be entitled to alimony where she has sufficient means of support independent of her husband. Permanent alimony is that which is allotted to the wife after final decree. By the Matrimonial Causes Act 1907, the court may, if it think fit, on any decree for dissolution or nullity of marriage, order that the husband shall, to the satisfaction of the court, secure to the wife such a gross sum of money or such annual sum of money for any term not exceeding her life, as having regard to her fortune (if any), to the ability of her husband, and to the conduct of the parties, it may deem reasonable. The court may suspend the pronouncing of its decree until a proper deed or instrument has been executed by all necessary parties. The court may also make an order on the husband for payment to the wife during their joint lives of a reasonable monthly or weekly sum for her maintenance; the court may also at any time discharge, modify, suspend or increase the order according to the altered means of the husband; the court has also power to make provision for children. Alimony is paid direct to the wife or to a trustee or trustees on her behalf, but the court may impose any restrictions which seem expedient. We may also describe as a kind of alimony the allowance of a reasonable weekly sum not exceeding £2 which in England, under the Summary Jurisdiction (Married Women) Act 1895, may be given to a married woman on applying to a court of summary jurisdiction if she has been forced by cruelty to leave her husband or has been deserted by him.
==United States== Alimony is granted by the courts of the several states on much the same principle as in England, though in many states the courts of equity as such may grant alimony without divorce or separation proceedings independently of any statute, on the ground that it is just that the husband should support his wife when she lives apart from him for his fault, and since the courts of common law provide no remedy the courts of equity will. This is so in Alabama (Brady v. Brady, 1905, 39 So. Rep. 237), Kentucky, North Carolina, Iowa, California, Ohio,Virginia, South Dakota and the District of Columbia. In other states alimony without such proceedings is allowed by statute, and such alimony is now very general throughout the United States. The usual grounds for the allowance of it are desertion and such conduct as would amount to legal cruelty. After divorce a vinculo, alimony or separate maintenance is sometimes granted on good reason. The marriage must be proven as a fact, but a "common law" marriage, i.e. one established by cohabitation and repute, is sufficient. In several states alimony or maintenance is by statute allowed to the husband in certain cases out of the wife's property. This is so in Massachusetts, Virginia, Rhode Island and Iowa. In Oregon he is entitled to one-third of his wife's real estate in addition to maintenance on divorce for her fault. The amount of alimony depends upon the circumstances of each case as in England. Permanent alimony is generally more than when pendente lite, and usually one-third the husband's income. It may generally be changed from time to time as the circumstances of the parties change. Judgment for alimony is considered a judgment in personam and not in rem, and can only be enforced outside the state where rendered in case the husband has been personally served with process within that state. The remarriage of the man is not sufficient ground for reducing the alimony (Smith v. Smith, 1905, 102 N.W. Rep. 631), but on remarriage of a woman to one able to support her, her former husband being in poor circumstances, it will be reduced (Kiralfy v. Kiralfy, 1901, 36 Wisc. N.S. 407).
Categories: ALD-ALI | Marriage | Civil and business law
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| | Post-Divorce Alimony in Texas - Article: Post-Divorce Alimony in Texas |
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