Alimony/Spousal Support 101:
Types, Deciding Factors, Time Length & More
Types, Deciding Factors, Time Length & More
Table of Contents
- What Is Alimony or Spousal Support?
- How Spousal Support Works
- Types of Alimony
- Factors Determined When Awarding Alimony
- What is the Impact of Legal Separation?
- Determining the Amount of Alimony
- Determining How Long Alimony Payments Will Last
- Factors that Cause Alimony Requests to Be Denied
- Effect of Marital Misconduct on Alimony Determinations
- State Differences in Spousal Support
- Tax Effect of Alimony
What Is Alimony or Spousal Support?
Alimony refers to a payment that one spouse makes to another spouse either by a lump-sum payment or on a continuing basis. A “supporting spouse” pays a “dependent spouse.” Alimony is also referred to as “spousal support” or “maintenance.” Alimony may be awarded as part of a court proceeding such as a divorce case or legal separation. It may also be awarded in other types of cases, such as an order of protection.
Alimony was historically established to provide financial assistance to a woman who usually sacrificed her own career to support the household. Courts recognized that women in this situation provided other benefits to the spouse who earned an income outside the household and were often unable to make enough money to support themselves after a divorce. Today, courts may order spouses of either sex to pay alimony and men may be dependent spouses.
Alimony is generally not automatically awarded in a divorce. One of the spouses may have to officially request it. Alternatively, the spouses can agree to spousal support and this agreement can be incorporated into the divorce decree.
How Spousal Support Works
Spousal support occurs through payment from one spouse to the other spouse. This may be a lump-sum payment in which a certain amount of money and/or property is given to the other spouse one time or on a few occasions. Alternatively, it could be ongoing payments that are made no a regular basis, such as once or twice a month. These payments may be made directly to the spouse, such as depositing the amount of support to the dependent spouse’s bank account, or it may be made through mandatory payments, such as a wage assignment in which the employer forwards this amount to the dependent spouse or a clearinghouse directly from the paying spouse’s wages. The method of payment is usually included in the alimony order or agreement.
The spouses may be able to negotiate the terms of alimony in mediation or through their lawyers. In these situations, the spouses may be able to reach an agreement regarding the amount, duration and structure of spousal support. In these situations, the spouses may use an objective formula or calculator to determine the amount and duration of spousal support, or they may reach an independent agreement based on their particular circumstances and needs. If the spouses reach an agreement, they present it to the judge for final approval.
Types of Alimony
There are various types of alimony. Some states do not recognize all types of alimony. Some are more likely to award particular types of alimony than others.
Common forms of alimony include:
Lump-sum alimony is the payment of support in a certain amount. It may include money and/or property. The total amount of alimony to be paid is fixed. It may be paid once or in set payments. When this type of support is provided, there is not usually any other requirement to pay another type of alimony to the dependent spouse.
Permanent alimony means that alimony payments will continue indefinitely. It may not actually be permanent, though. Alimony often ends at certain events, such as when the paying spouse retires or the dependent spouse remarries or cohabitates with a romantic partner, depending on state law. Also, the paying spouse may be able to petition the court for a modification of support if circumstances change.
Several states have eliminated permanent alimony altogether, while others drastically limit it for only certain situations, such as if a spouse is handicapped and unable to work or if a spouse spent many years out of the workforce to care for the couple’s children. Permanent alimony is more likely to be ordered in cases involving long-term marriages. Some states are more likely to grant this type of alimony than other states. New Jersey, New Hampshire, Michigan, Oregon, Virginia and Washington are some states that award permanent alimony more than other states.
In some alimony cases, the court may order that alimony payments continue for a set period of time. The court may order that support payments continue for a certain amount of time based on the length of your marriage. For example, when California courts order spousal support in cases involving marriages that lasted less than ten years, it is usually for half of the marriage. So, if the couple was married for eight years, the divorce order may state that spousal support payments would continue until four years into the future.
The alimony term may also be based on a particular event occurring (or not occurring), such as:
- All of your children become school-age or no longer require a full-time parent at home
- All of your children graduate high school
- Your spouse obtains a degree or additional training and acquires a job that provides sufficient income
- Your spouse has had enough time to become self-sufficient but has failed to make a reasonable effort toward this goal
If one of these conditions applies, you may be required to provide proof of it before the alimony order is modified or dismissed.
Separation alimony, or alimony pendente lite, is support that is paid while spouses are legally separated or while their divorce is pending. It is usually ordered by the divorce court only for the duration of the case.
This type of support is intended to provide financial support during the divorce process so that the spouses can maintain their standard of living during this limited duration. This type of alimony can be ordered even if ultimately the family court decides not to grant permanent alimony or any other type of alimony. If the couple decides to reconcile, this alimony can be stopped. If the couple divorces, another type of alimony may be awarded.
Many states are moving toward a preference for rehabilitative alimony in which one spouse provides financial support to the other spouse for a limited duration of time that allows the dependent spouse to become self-sufficient.
For example, if a spouse left the job market to support the other spouse’s business or to raise the couple’s children, this type of support may be ordered until the spouse is able to earn a large enough earning to no longer require the support. The term of alimony allows the dependent spouse time to acquire additional education, job training, work experience or other skills or attributes to have desirable employment skills and to become employed in a position that provides adequate income for self-sufficiency.
There may not be a specific date that is established when ordering this type of spousal support, but the term may be based on meeting certain goals. However, the support order may indicate that there will be follow-up court hearings to check on the progress of the goals of self-sufficiency. If the court determines that the dependent spouse is not making reasonable efforts to become self-supporting, it may limit the time period for when spousal support will continue or may dismiss the alimony case. The court can also extend the timeline if it considers this action appropriate.
This type of alimony reimburses a spouse who helped pay for the education or acquisition of appropriate job skills to allow the other spouse to increase their earning potential.
Factors Determined When Awarding Alimony
Each state has its own approach to determining whether an award of alimony is appropriate. Courts generally have wide discretion in determining whether to award alimony and to consider what type of alimony and amount of alimony to order. In making these decisions, courts may consider many factors, both of an economic and non-economic nature. They may consider factors such as:
- Historical earning histories of each spouse
- Earning capacities of each spouse
- The age and health of each spouse
- The education and job skills of each spouse
- The job market
- The source of earned and unearned income of both spouses
- The separate property and its ability to provide for the economic needs of the spouses
- The length of the marriage
- The contributions of each spouse to the marriage, including the homemaking services of one spouse
- Whether the dependent spouse made career sacrifices to support the career of the other spouse
- The contribution of one spouse to the education, training or increased earning power of the other spouse
- The custody arrangement for any children of the spouses
- The standard of living the spouses established during the marriage
- The amount of time it would take for a dependent spouse to become self-supporting through obtaining additional education or training
- The needs of the spouses
- The debts of each spouse
- Childcare responsibilities
- Any history of domestic violence
The court can place a different weight on certain factors that it deems most relevant when making these decisions.
What is the Impact of Legal Separation?
Depending on your state and circumstances, legal separation may have a minor or major impact on your life. In some situations, legal separation may automatically establish certain rights or responsibilities while in other situations, the specific language in the separation agreement will establish certain rights.
Legal separation may affect the following:
- Filing status – Depending on your state, a legal separation may affect your filing status and whether you can file jointly, married filing separate or as head of household.
- Debt obligations – Your separation order or agreement may state a specific date establishes when separate date will be recognized so that any debt accumulated after this point is the sole responsibility of the spouse who incurs it, if you live in an equitable distribution state. However, it is important to remember that generally a legal separation agreement (or divorce decree) typically does not have bearing on the creditor’s right to pursue you for any debt that was part of a joint debt or that you had ownership of. The creditor may still be able to sue you for unpaid debt. However, you may then be able to sue your spouse or ask for the court to find him or her in contempt for not obeying the court order.
- Other financial responsibilities – The separation agreement or order may dictate further financial responsibilities, such as the responsibility of having to close a joint bank account and credit cards, being responsible for their own household expenses, having to maintain insurance or continuing to make mortgage payments.
- Accumulation of wealth – A legal separation may also impact what property is considered marital property. A separation agreement or order may provide a specific date after which point all acquired income or property is considered separate and subject to division in any later divorce case.
It is important to consider the potential legal implications of getting a legal separation before requesting the court order one.
Determining the Amount of Alimony
For the majority of states, the amount of spousal support someone receives is based solely on the judge’s discretion by considering factors like those listed above. Therefore, the amount of alimony varies widely. Some states have alimony calculators that provide a general idea of the estimate of how much spousal support may be ordered given certain economic data you input. Some states like Massachusetts have formulas to help calculate alimony awards.
Determining How Long Alimony Payments Will Last
Like other aspects of alimony, the length of alimony payments is often a discretionary decision. However, there may be some guidelines that certain states follow pertaining to the length of alimony payments, including:
- Alimony ends in Massachusetts when the paying spouse reaches retirement age
- Delaware, Illinois and Virginia end alimony when the dependent spouse cohabitates with a
- Alimony is subject to a limit of 121 months in Kansas
Many states limit the amount of spousal support based on the length of the marriage, making an exception for long-term marriages, such as those lasting 20 years or longer. In California, spousal support generally lasts for half of the length of marriage for marriages less than 10 years. In Massachusetts, marriages lasting for 5 years or less can result in a maximum length of support of half of the length of the marriage. It increases the maximum length of alimony payments based on the length of the marriage for between 60 and 80 percent of the length of the marriage.
It can order permanent alimony for marriages lasting 20 years or longer. Illinois bases the length of alimony payments from .2 to .8 times the length of the marriage while allowing for permanent alimony for marriages lasting 20 years or longer.
A spouse may be able to petition the court for a modification of spousal support if circumstances change that impact the ability or necessity to pay spousal support, such as the dependent spouse becoming self-supporting or the paying spouse becoming disabled.
Factors that Cause Alimony Requests to Be Denied
The primary factor or consideration in awarding alimony in many states is that the paying spouse is able to pay support. If the paying spouse cannot afford to provide support, the court may not order alimony.
Effect of Marital Misconduct on Alimony Determinations
Traditionally, states would limit or prohibit spousal support if the dependent spouse was at fault in the separation or divorce. It is important to note that today with the advance of no-fault divorce in the country, more than half of the states do not consider marital misconduct when determining spousal support awards.
In some states, marital misconduct can prevent a dependent spouse from receiving alimony. Marital misconduct often means cheating or engaging in an adulterous affair. However, marital misconduct may include other acts – depending on state law – such as:
- Abandoning the other spouse
- Excessively using drugs or alcohol
- Treating the dependent spouse in a cruel manner
- Rendering the life of the dependent spouse intolerable due to inflicting indignities
- Spending marital funds in a reckless way or destroying, wasting or concealing assets
Some states recognize marital misconduct when awarding spousal support while others do not. For example, North Carolina considers misconduct like that described above. Pennsylvania also considers marital misconduct when awarding alimony but does not consider conduct since the separation except any abuse. Some states only consider marital misconduct as It relates to economic misconduct. Economic misconduct may include acts that negatively impact spouses on a financial level, such as hiding assets, committing tax fraud, destroying marital property or using marital assets to pay for a mistress. New Jersey generally only considers marital misconduct if there was economic misconduct or the dependent spouse’s misconduct was so egregious that it would be “unconscionable” to award alimony.
Some states like Georgia and North Caroline consider the dependent spouse’s marital misconduct and will limit or prohibit alimony based on this factor. In Georgia, if both spouses engaged in spousal misconduct such as adultery, alimony can still be awarded.
State Differences in Spousal Support
Since divorce is governed by state law, there are many differences between how states handle alimony cases. Some of the differences that may arise in the context of alimony law in different states include:
- The terms used for alimony
- Whether permanent alimony is awarded in the state
- How difficult it is for spouses to get alimony awarded, especially permanent alimony
- The factors the courts use to determine whether to award alimony, the duration of payments and the amount of alimony
- The types of alimony that the state recognizes
- Whether marital misconduct affects alimony awards
- When alimony ends
- Whether cohabitation automatically terminates alimony
- How alimony is paid
- Whether a state encourages a specific type of alimony, such as temporary alimony that continues until a spouse is able to become self-sufficient through professional training or additional education
- Whether the state uses a specific formula to determine the amount or duration of payments
- Whether spousal support can be combined in an order with child support and how this affects enforcement actions and tax treatment
Because there are so many important differences in how alimony cases are decided in different states, it is important to learn about the particular rules in the state where you are getting divorced or to consult with an experienced family law attorney in your state.
Tax Effect of Alimony
In 2019, there was a major change in the tax treatment of alimony. Before this time, alimony paid was tax-deductible and alimony received was considered taxable income. This created an incentive for spouses to pay support since they could reduce their taxable income. However, beginning in January 2019, this law changed and alimony payments for divorces entered onward are no longer tax-deductible. Additionally, legal fees paid to attorneys to handle alimony issues are also no longer tax deductible.
This change may make it more difficult to get spouses to agree to pay alimony since they will no longer receive this favorable tax treatment. It may also result in lower amounts of alimony since the tax benefit is removed from paying alimony.
Individuals who already have an alimony agreement in place will have their cases grandfathered in, so they continue to receive tax deductions based on paid alimony. However, if they modify their agreement, they may be subject to the new rules.