On October 1, 1995, the law of alimony changed
dramatically. In all alimony actions filed
on or after October 1, 1995, the spouse seeking
alimony must only prove that he or she is
a dependent spouse to be entitled to an award
of alimony. The following information relates
to alimony actions filed on or after October
1, 1995. Consult your legal adviser for information
concerning alimony actions filed before October
1, 1995, or alimony orders entered before
that date.
The court will award spousal support
only to the dependent spouse. Generally, a
spouse
is
dependent
if
he or she earns insufficient income to maintain
the standard of living enjoyed during the marriage
because of the loss of the other spouse's income.
There are two types of spousal support. The
first, called "postseparation support",
is temporary and is designed to provide for
the dependent spouse's support until a final
order of alimony is entered. An award of postseparation
support automatically ceases upon the entry
of an award of permanent alimony. The second
type of spousal support, called “permanent
alimony,” is
alimony awarded by the court to the dependent
spouse paid either in a lump sum or periodically
over a specified or indefinite period. Despite
the use of the word "permanent," an
award of permanent alimony does not necessarily
last forever. The court has the discretion
to order payment of permanent alimony for only
a limited time period.
The court may hold two separate hearings. The
first, the postseparation support hearing,
may be heard with child support and child custody
claims. At this hearing, a judge sitting without
a jury will hear the evidence and decide if
one spouse is a dependent spouse. In deciding,
the court considers the income and expenses
of both the dependent spouse and the supporting
spouse. The court considers each spouse's affidavit
describing their income and expenses, although
each party may testify before the court. The
court will compare the parties' incomes and
expenses, and decide the financial needs of
each party and their accustomed standard of
living. If it determines that the resources
of the spouse seeking support are not adequate
to meet his or her reasonable needs and the
other spouse has the ability to pay, the court
will find the spouse to be the dependent spouse.
It will then make an award of postseparation
support to the dependent spouse. In determining
whether to award postseparation support, and
the amount of the postseparation support, the
court must also consider any acts of marital
misconduct committed by the dependent spouse
on or before the date of separation. If the
court considers marital misconduct by the dependent
spouse, the court must also consider acts of
marital misconduct committed by the supporting
spouse on or before the date of separation.
Once the court awards postseparation support,
the award continues until the date specified
in the order or the entry of a final order
of permanent alimony. The postseparation support
can either be periodic payments, a lump sum
payment, a transfer of personal property, possession
of property, a security interest in real property
or a combination of these.
The procedure at the permanent alimony hearing
is much the same. Once the court decides that
one spouse is the dependent spouse and that
the other spouse is the supporting spouse,
the court may award permanent alimony to the
dependent spouse. In deciding the amount of
alimony to award, the duration of the award,
and the manner of payment of the award, the
court has wide discretion, but must consider
all relevant factors, specifically including:
the marital misconduct of either of
the spouses;
the relative earnings and earning capacities
of the spouses;
the ages and the physical, mental, and
emotional conditions of the spouses;
the amount and sources of earned and
unearned income of both spouses,including
but not limited to, earnings, dividends,
and benefits such as medical, retirement,
insurance, social security, or others;
the duration of the marriage;
the contribution by one spouse to the
education, training, or increased earning
power of the other spouse;
the extent to which the earning power,
expenses, or financial obligations of a spouse
will be affected by reason of serving as
the custodian of a minor child;
the standard of living of the spouses
established during the marriage;
the relative education of the spouses
and the time necessary to acquire sufficient
education or training to enable the spouse
seeking alimony to find employment to meet
his or her reasonable economic needs;
the relative assets and liabilities
of the spouses and the relative debt service
requirements of the spouses, including legal
obligations of support;
the property brought to the marriage
by either spouse;
the contribution of a spouse as homemaker;
the relative needs of the spouses;
the federal, State, and local tax ramifications
of the alimony award;
any other factor relating
to the economic circumstances of the parties
that the court
finds to be just and proper.
Because of the
wide discretion vested in the court, there
is no way to predict with accuracy the amount
of alimony a court will award or the duration
of such an award. Although the court's discretion
is broad, the court must strive to be fair
to both parties. If it finds that the supporting
spouse is deliberately depressing his or her
income, it can base an award on capacity to
earn rather than actual earnings. Although
in awarding alimony, the court attempts to
allow both parties to maintain the standard
of living to which they grew accustomed during
the marriage, the harsh economic reality is
that in most cases both spouses will be required
to accept a lesser standard of living because
their income levels will not be sufficient
to maintain two separate households according
to the accustomed standard of living during
the marriage.
One recurring theme in both postseparation
support and alimony is the idea of "marital
misconduct." As defined by statute, "marital
misconduct" means any of the following
acts committed by either of the spouse during
the marriage and before or on the date of separation:
Illicit sexual behavior;
Involuntary separation of the spouses
in consequence of a criminal act committed
prior to the proceeding in which alimony
is sought;
Abandonment of the other spouse;
Malicious turning out-of-doors of the
other spouse;
Cruel or barbarous treatment endangering
the life of the other spouse;
Indignities rendering the condition
of the other spouse intolerable and life
burdensome;
Reckless spending of the income of either
party, or the destruction, waste, diversion,
or concealment of assets;
Excessive use of alcohol or drugs so
as to render the condition of the other spouse
intolerable and life burdensome;
Willful failure to provide necessary
subsistence according to one's means and
condition so as to render the condition of
the other spouse intolerable and life burdensome.
These factors can
be considered to either support the award of
postseparation support or alimony if the marital
misconduct was committed by the supporting
spouse, or to deny or reduce the amount of
postseparation support or alimony that might
otherwise have been awarded, if the marital
misconduct was committed by the dependent spouse.
The court treats "illicit sexual behavior" differently than the other
factors listed above. "Illicit sexual behavior" means acts of sexual
or deviate sexual intercourse, deviate sexual acts, cunnilingus, fellatio, anilingus,
or anal intercourse, voluntarily engaged in by a spouse with someone other than
the other spouse. If the dependent spouse has engaged in illicit sexual behavior
on or before the date of separation, the court will deny postseparation support
or permanent alimony completely unless the supporting spouse also has engaged
in illicit sexual behavior on or before the date of separation. If both parties
have engaged in illicit sexual behavior on or before the date of separation,
the court has the discretion to award or deny postseparation support or alimony
after considering all the circumstances. If only the supporting spouse has engaged
in illicit sexual behavior on or before the date of separation, the court must
order payment of alimony. The idea of illicit sexual behavior is one of the most
important changes of the new alimony statutes that became effective October 1,
1995. Prior to October 1, 1995, adultery automatically barred a dependent spouse
from receiving alimony, regardless of whether the supporting spouse had also
committed adultery, and regardless of whether the adultery occurred before or
after the date of separation. Under the new statutes,
only acts of illicit sexual behavior committed on or before the date of separation
are "marital misconduct." The
commission of an act of illicit sexual behavior by the dependent spouse may bar
an award of postseparation support and alimony if the supporting spouse has not
also committed an act of illicit sexual behavior.
Either spouse has a right to
a jury trial to decide whether the other spouse has committed "marital
misconduct." Once the judge or jury
has decided the questions of "marital
misconduct," the judge will award or
deny permanent alimony based upon the factors
discussed above. Again the judge may reduce
the amount awarded if the dependent spouse
has engaged in marital misconduct. The court
will deny alimony completely if the dependent
spouse has engaged in an act of illicit sexual
behavior on or before the date of separation
and the supporting spouse has not.
If after an incident of marital misconduct
occurs, the spouses resume the marital relationship
or have sexual relations, a court may rule
that the marital misconduct has been forgiven.
If the court finds that the marital misconduct
has been forgiven, or "condoned",
the act of marital misconduct may not be
used to support or defend against a claim
for alimony. The forgiveness is conditioned
upon the offending spouse treating the other
spouse kindly following the resumption of
the marriage relationship and not later repeating
the same or similar behavior.
Normally, the judge will not set permanent
alimony for trial until after all marital
property has been equitably divided either
by an agreement between the parties or by
an order of equitable distribution entered
by the court. In those instances where alimony
is set before property is divided, the judge
may review whether the dependent spouse is
still dependent after the property is divided.
The right of the dependent spouse to receive
alimony, and the obligation of the supporting
spouse to pay alimony, terminates upon the
death of either spouse, the dependent spouse's
remarriage, or if the dependent spouse continuously
and habitually cohabits with a person of
the same or opposite sex on a regular basis
in a marriage-like relationship. Periodic
alimony payments may also end by the terms
of a court order specifying that the payments
are to end on a certain date. Either party
may make a motion to increase or decrease
an alimony amount any time based upon a change
of circumstances.
When the parties file separate tax returns,
alimony payments will be considered taxable
income to the dependent spouse and a deduction
to the supporting spouse. All
spousal support matters should be analyzed
for tax consequences
by your CPA or tax advisor before you sign
a separation agreement or go to court.
We are not qualified as tax advisors. To
be tax deductible, support payments must
be paid under the terms of a written separation
agreement or court order.
Due to the short time the new alimony laws
have been in effect, there is no body of
appellate cases interpreting the new laws.
Therefore, although the previous discussion
is a general overview of the new law, it
is difficult to predict how the new alimony
laws will be applied in any particular factual
situation.
