Posted by: Melinda Parks | April 20, 2009

Will I Get Alimony?

A spouse who needs financial assistance after a divorce may, under certain circumstances, receive “alimony” from the spouse who has the ability to pay.  Alimony is intended to preserve the economic status for both parties as it existed during the marriage.  Payments can be made in a lump sum amount (alimony in gross) or in periodic payments for a determined amount of time.  Rehabilitative alimony is sometimes awarded for a short period (e.g., 2 or 3 years) and is designed to help a spouse transition back into the job market.   

Alimony in gross gives a present value to a spouse’s rights to alimony and is similar to a division of property.  Alimony in gross cannot be modified after 30 days from the final divorce decree being entered and remarriage of the receiving party does not entitle the paying party to reimbursement.  Additionally, the court does not have to consider the receiving party’s separate estate in determining the amount and the lump sum payment may be nontaxable. 

Periodic alimony payments are made over time and differ from alimony in gross in several ways.  First, the amount can be modified upon a showing of a material change in circumstances for either party after the divorce.  Second, periodic alimony terminate upon remarriage or cohabitation of the receiving party or upon death of either party.  Finally, periodic alimony is a tax deduction for the paying spouse and income for the receiving spouse. 

Factors Considered
An award of alimony in Alabama is competely discretionary with the court.  It is awarded only upon a showing of need by one spouse coupled with a showing of ability to pay by the other spouse.  Unlike child support, there is no statutory formula to determine the amount or if any award will be made at all.  In making its determination, the court will consider the following:

  • The length of the marriage (rarely awarded in marriages of less than 12 years and generally reserved where one spouse has been dependent upon the other for most of the marriage);
  • Each party’s respective earning ability and future earning prospects;
  • The ages and health of each party;
  • The value and type of property owned by the parties;
  • Conduct of the parties during the marriage (misconduct, such as infidelity, can be considered in determining whether to award alimony and how much to award);
  • Any other factors the court deems relevant.

Cohabitation

In Alabama, periodic alimony is (for the most part) subject to termination upon proof that “the spouse receiving such alimony has remarried or that such spouse is living openly or cohabiting with a member of the opposite sex.”  Ala. Code § 30-2-55 (1975).  The question of whether a former spouse is living openly or cohabiting with a member of the opposite sex is a factual determination, which means evidence must be presented to the court and the court makes the final determination.  Factors to consider when determining whether a former spouse is cohabiting with a member of the opposite sex include, but are not limited to, the following:

  • Permanency of relationship coupled with more than occasional sexual activity;
  • Payment of debts by former spouse’s cohabitant;
  • Purchase of clothes for former spouse by cohabitant;
  • Whether the alleged cohabitant maintains the former spouse’s household by cleaning, cooking, washing and yardwork;
  • Receipt of mail by alleged cohabitant at former spouse’s residence;
  • Keeping clothes and other personal items at former spouse’s residence; and
  • Using the address for identification purposes.

In cases where the former spouse merely has a roommate of the opposite sex who pays rent and there is no evidence of sexual activity between the two, proof of cohabitation probably does not exist.

 

Former Spouse Becomes Self Supporting

If the former spouse becomes self-supporting with income and estate as great or greater than the paying spouse, alimony may be terminated, but proof of such does not mandate termination.

 

Modification of Alimony Amount

Upon the happening of a material change in circumstances of one or both parties after the divorce, periodic alimony may be modified.  The burden of proving the material change is on the Petitioner and factors to be considered include, but are not limited to, the following:

  • The remarriage of the paying spouse;
  • The receiving spouse’s employment since the divorce;
  • The financial status and needs of the receiving spouse;
  • Whether the receiving spouse is presently capable of self-support;
  • The ability of the paying spouse to respond to the former spouse’s financial needs;
  • Whether there are dependent children;
  • Whether alimony was originally agreed upon;
  • Whether there has been a material change in the financial situation of either, or both, of the parties;
  • The health, age, and education of the parties, the earning ability of the parties and their probable future prospects, the duration of the marriage, the conduct of the parties with particular reference to the cause of the divorce;
  • The length of time separating the initial alimony award and the modification hearing; and,
  • Any other material and relevant circumstances as disclosed by the evidence in a particular case.   

Not every one of the above factors are of equal importance and each case is decided on its own facts.  It is important to note that in a situation where the payor of periodic alimony files a petition to modify or terminate alimony and the recipient makes no request for an increase, the fact that the recipient is unemployed or underemployed is irrelevant.

Bankruptcy
Under the federal bankruptcy code, alimony is non-dischargeable.  This means that if the paying party files bankruptcy, alimony payments must still be made.

Check back soon for information on dividing retirement benefits.

 

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