If one spouse is determined to be a dependent spouse, the other spouse is referred to as the supporting spouse.
Alimony will not be paid to a spouse the Court (or a jury) finds participated in illicit sexual behavior during the marriage (before separation) unless both spouses were guilty of illicit sexual behavior in which case the alimony will be awarded or denied at the discretion of the Court. If the supporting spouse committed illicit sexual behavior during the marriage, the dependent spouse will be granted alimony.
Condoning illicit sexual behavior can eliminate it as the grounds for awarding or not awarding alimony.
Alimony is not punitive. Marital misconduct is not required for alimony to be awarded. Need and maintaining the standard of living are the basis of alimony awards.
Alimony means an order for payment for the support and maintenance of a spouse or former spouse. Alimony may be ordered:
- As a periodic payment
- As a lump sum payment
- For a specific period of time
- For an indefinite period of time
- In relationship to an absolute divorce
- In relationship to a divorce from bed and board
- In an action not involving divorce
Post-separation support is the support to be paid while waiting for:
- The judgment of absolute divorce, if no claim of alimony is pending
- The award of alimony
- The dismissal of an alimony claim
- A specified date
- Termination of post-separation support
- Cohabitation of the dependent spouse in a romantic relationship
- The death of either spouse
- The resumption of regular marital relations between the dependent spouse and the supporting spouse (reconciliation)
Post-separation support may be ordered in divorce actions and annulments. Marital misconduct is rarely considered in post-separation support because it is temporary.
Dependent Spouse refers to a spouse who is substantially dependent upon the other spouse for his or her maintenance and support or who is substantially in need of maintenance and support from the other spouse.
Supporting Spouse is the spouse the dependent spouse is substantially dependent upon for support.
When an evaluation of the reasonable monthly expenses shows they exceed the monthly income and the spouse does not have any other way to meet those expenses, the spouse is considered a dependent spouse. The question applied to determine reasonable monthly expenses is not whether someone could afford to live on the income, but whether the expenses reflect the standard of living established during the marriage. As a result, reasonable may be very different for each divorce.
- It is acceptable to maintain the social and economic standard of living the established during the marriage. The dependent spouse must demonstrate:
- The standard of living established during the marriage
- That the dependent spouse lacks the means to maintain the standard
- The ability to borrow money to handle expenses does not relieve one of dependence. If the borrowing is related to maintaining the standard of living, it can be evidence of dependency if it is necessary to maintain the standard of living.
- The supporting spouse must be able to pay the support the dependent spouse needs in order for the award to be made.
Alimony awards may be revisited after the award of Equitable Distribution.
Having to borrow is a sign that support is needed.
Amount of Alimony
The Amount of Alimony awarded is determined by a variety of factors.
- Marital misconduct during the marriage. Conduct after the date of separation may be used to corroborate evidence relating to misconduct prior to the date of separation.
- The earnings of each person
- The earning capacity of each person
- The age of each person
- The physical condition of each person
- The mental conditional of each person
- The emotional condition of each person
- The amount and source of earned and unearned income of each spouse from any source
- The duration of the marriage
- The contribution by one spouse to the education, training, or increased earning power of the other spouse
- The impact on the earning power of a custodial parent from childcare responsibilities
- The standard of living enjoyed by the spouses during the course of their marriage
- The education of each spouse and the time that would be required to increase the level of education or training to enable the spouse seeking alimony to find employment to satisfy his or her reasonable economic needs
- The assets and liabilities of the spouses
- The debt service requirements of each spouse, including legal support obligations
- The property brought into the marriage by either spouse
- Contributions the spouse made as a homemaker
- The needs of each spouse
- The tax ramifications of the alimony award
- Other factors relating to the economic circumstances that the court finds to be just and proper
- If income received by either party was considered by the Court in determining the value of assets in an equitable distribution of assets
In the alimony order, the Court will state the reason(s) it bases its award or denial of alimony on including the reason, the duration, and the manner of payment.
Marital misconduct includes:
A jury trial may be requested and decide whether there was marital misconduct based on evidence submitted by either spouse.
- Adultery and other voluntary sexual acts between a spouse and someone other than the spouse.
- Involuntary separation of the souses as the result of incarceration for a criminal act.
- The abandonment of one spouse by the other.
- The “malicious turning out-of-doors” of one spouse by the other.
- Cruel or barbarous treatment that endangers the life of the other spouse.
- Indignities or the excessive use of alcohol or drugs that render the condition of the other spouse intolerable and their life burdensome.
- Reckless spending of income generated by either spouse; or the destruction, waste, diversion, or concealment of assets.
- Willful failure to provide the necessary subsistence according to one’s means and condition so as to render the condition of the other spouse intolerable and life burdensome.
Alimony may be modified or vacated based on a change of circumstances of either party.
Either spouse may request post-separation support. Absent marital misconduct by the dependent spouse, a dependent spouse is entitled to post-separation support if the court finds that the resources of the dependent spouse are not adequate to meet his or her reasonable needs and the supporting spouse has the ability to pay. The following factors will be considered in determining the amount of post-separation support awarded.
- The financial needs of the parties
- The parties’ accustomed standard of living
- The present employment income and other recurring earnings of each party from any source
- Their income-earning abilities
- The separate and marital debt service obligations
- Those expenses reasonably necessary to support each of the parties
- Each party’s respective legal obligations to support any other persons
Marital misconduct by the dependent spouse through the day of separation will be considered. Marital misconduct by the supporting spouse may be considered in the decision to award post-separation support and the amount of support awarded. Conduct after the date of separation is not considered except when it is used to corroborate evidence supporting other evidence that marital misconduct occurred during the marriage.
There are a variety of methods available to enforce orders of support including:
- Attachment and garnishment
The rules for appeals are complicated. Discuss them with your Family Law attorney. There may be time limits involved so if you want to appeal a decision, contact your attorney quickly.
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