Types of Alimony / Spousal Support

Terms:

Annulment:
An annulment is the legal process by which a marriage is invalidated retroactively to the date of the inception of the marriage.  An annulment differs from a divorce in that in a divorce, the couple was once “married,” and in an annulment, the court establishes that a marital status never existed.

Void Marriage:
A marriage not good for any legal purpose, the invalidity of which may be maintained in any proceeding between any parties.  Such a marriage is invalid from its inception, and parties thereto may separate without benefit of court order of divorce or annulment. 

Alimony Pendente Lite:
A temporary award of alimony that is awarded while the divorce proceeding is pending.

Before an ex-spouse can even be eligible for alimony there has to be a valid marriage.  If the marriage ended in annulment or was considered void, generally, there is no legal basis for awarding alimony unless state statutes provide otherwise. 

Alimony awards can come in a variety of forms:

  • Temporary Alimony
  • Rehabilitative Alimony
  • Permanent Alimony

Additionally, more than one category of award can be awarded in the same divorce action.

Temporary Alimony

Temporary alimony or alimony pendente lite, is often awarded during the period the divorce proceeding is pending.  This type of award becomes necessary due to the length of time it could take before the final decree is issued and a permanent alimony award is made.

Example: Betty and Alex have been married for five years and have two small children.  When the twins were born Alex gave up his high powered career as an attorney to work part-time as an advisor to a nonprofit organization.  Betty maintained her position as a corporate attorney and has since been made a partner at her law firm.  They live in a jurisdiction where the average time to complete a divorce is two to three years.  In order for Alex to have sufficient funds to live on before the final decree is issued, the court awarded him temporary spousal support in the amount of $1,500 per month.

As with other areas related to family law, the courts have the discretion as to whether an award of temporary alimony is warranted.  See, e.g., Hempel v. Hempel, 30 N.W.2d 594 (Minn. 1948).

For example, California deals with temporary alimony as follows:

During the pendency of any proceeding for dissolution of marriage or for legal separation of the parties . . . the court may order (a) the husband or wife to pay any amount that is necessary for the support of the wife or husband, consistent with the requirements of subdivisions (i) and (m) of Section 4320 and Section 4325 . . . . 

See Cal. Fam. Code § 3600 (2005).

Example: While visiting a Caribbean island several years ago, Andrea met Zach, who was 15 years her junior.  At the time he worked as a busboy in the resort where she stayed during her visit.  Andrea was a successful television producer.  After a two-year courtship they married in an intimate ceremony on the same island where they met.  After their honeymoon, Zach moved to Andrea’s sprawling home in Laguna Beach, California.  After only five months of marriage they separated.  As part of their divorce proceeding, Zach asked for an award of temporary alimony because during the time they lived together he did not work and had no way to support himself.  It is up to the court’s discretion to decide whether to grant Zach’s request, taking into account his unique circumstances.

Rehabilitative Alimony

Generally, rehabilitative alimony is used to support the spouse during a period of retraining or re-education for re-entry into the workforce, thereby enabling the spouse to become self-supporting in the not too distant future.  See, e.g., Dakin v. Dakin, 384 P.2d 639 (Wash. 1963); Morgan v. Morgan, 366 N.Y.S. 2d 977 (1975).  Since it provides a temporary fix to help the party regain marketable skills, it can be classified as another form of temporary alimony. 

The courts are more compelled to award this type of alimony where the spouse seeking it has some potential for establishing a viable career. 

Example: Glenda and Harry were married for 10 years before they separated.  During their marriage, Glenda stayed home to take care of their two children.  Before their marriage, Glenda was studying to become an architect.  As part of their divorce settlement, Glenda was awarded five years of rehabilitative alimony so that she could go back to school to obtain additional training in architecture so that she could eventually become self sufficient.  Typically, courts allow this limited support for the ex-spouse to get back on her feet.

Courts are free to impose time limits on the duration of these types of awards and other requirements on the recipient.  For instance in California:

When making an order for spousal support, the court may advise the recipient of support that he or she should make reasonable efforts to assist in providing for his or her support needs, taking into account the particular circumstances considered by the court . . . .

See Cal. Fam. Code § 4330(b) (2005) (emphasis added).

On the other hand, if the petitioning spouse has a valid reason for an extension of the award, the courts are more likely to grant the request.

Example: Dolores lives in a state that limits alimony awards to three years where there are no minor children, but permits an extension of the period if warranted.  During the marriage, Dolores worked part-time as a teacher’s aide.  Dolores petitioned for an extension; however, she did not articulate any justifiable reason for the request.  The court denied her demand, reiterating that alimony was only a short-term support mechanism until the spouse could become self-supporting.  Dolores had the burden of proving that justice required an extension.  See, e.g., Calderwood v. Calderwood, 327 A.2d 704 (N.H. 1974).

Permanent Alimony

Permanent alimony becomes effective upon the final dissolution of the marriage.  Additionally, it can come in various forms:

  • Periodic payments (often monthly)
  • Lump sum payments
  • Annuity payments
  • Trust payments
  • In-kind payments (e.g., making direct payment for services)

Despite the seemingly permanent nature of this type of award, it usually does not last forever (i.e., until the recipient’s death).  In most jurisdictions there is no prescribed period for alimony payments.  For instance, the California statute which deals with the duration of alimony states:

In a judgment of dissolution of marriage or legal separation of the parties, the court may order a party to pay for the support of the other party an amount, for a period of time, that the court determines is just and reasonable, based on the standard of living established during the marriage, taking into consideration the circumstances as provided in Chapter 2 (commencing with Section 4320).

See Cal. Fam. Code § 4330(a) (2005) (emphasis added).

Example: David and Maria were married for 29 years before Maria filed for divorce.  During their marriage both worked full-time.  They have two grown children.  Maria requested an award of alimony because David earns substantially more money than she does.  Despite her lower salary, Maria still has a comfortable standard of living.  In considering whether to grant Maria’s request for alimony, the court will take into account their lifestyle during the marriage and how closely Maria should be able to continue living at that level.  Nevertheless, given the fact that Maria is already self-supporting, it is possible the court might deny her request and refuse to award any alimony.

Despite the nomenclature, courts consider various factors before making the decision as to which party, if any, should be entitled to alimony.

Factors in Alimony/Spousal Support

Alimony awards are generally based upon the needs and abilities of each party, using factors such as:

  • Age of the parties;
  • Health and physical condition of the parties;
  • The earning capacity of the parties(e.g., taking into account the supported spouse’s marketable skills vis-à-vis the current job market for those skills);
  • Present income of the parties;
  • The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party;
  • The ability of the supporting party to pay spousal support, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living;
  • The duration of the marriage;
  • The needs of each party based on the standard of living established during the marriage; and
  • The jurisdiction of the marriage (in some jurisdictions).

See, e.g., Cal. Fam. Code § 4320.

When divorce statutes were fault-based, there were two additional factors courts considered: (1) degree of fault and (2) maintenance of status.

Example: Tyler and Madge were married for eight years before Madge got bored with the marriage and had an affair with her husband’s cousin.  When Tyler found out about the affair, he filed for divorce.  Since they live in a fault-based jurisdiction, Tyler raised the issue of Madge’s adultery as a way to defeat her request for alimony.  In deciding whether to award alimony to Madge, the court will look at whether Madge’s adulterous actions warrant a reduction in any potential alimony award.

Enforcement of Alimony Awards

An alimony award is essentially a court order, thereby making payment mandatory—based on the dictates of the order.  If the payor fails to fulfill those obligations, he or she will be in contempt of court.  As such, the court can take the necessary steps to compel the payor to comply with the order.  Specifically, courts can choose either to pursue a civil or criminal proceeding against the scofflaw.

A civil proceeding has an underlying purpose of getting the delinquent payor to make the required payments rather than punishing the delinquent payor.  Conversely, a criminal proceeding is used to punish the offender, which usually results in the imposition of a some jail time.  See, e.g., Hicks v. Feiock, 485 U.S. 624 (1988). 

Remedies for nonpayment can include:

  • Imprisonment for a prescribed period of time (despite the threat of imprisonment, many jurisdictions are unwilling to throw their debtors in jail)
  • Judgment against the non-complying party (also enforceable in other states under the doctrine of full faith and credit)
  • Seizure of property such as tax refunds
  • Liens on real property
  • Wage garnishments

If the reason behind nonpayment is due to an inability to pay, that argument can be advanced in a petition for modification of the award.

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