One of the most contested aspects of a divorce case is alimony. While people usually do not complain about supporting their minor children, they really don’t like having to write their ex a check every month. To do so makes the payer of alimony feel like the divorce will never end, and makes him feel he is working hard to support someone that doesn’t appreciate him.
On the flip side, a spouse who didn’t work during the marriage, often at the insistence of her husband, is in some cases entitled to maintain the standard of living to which she has grown accustomed. She may have foregone a successful career in order to support her spouse’s career and their children. Alimony and Spousal Support is designed to ensure she is not left destitute after all of her sacrifice.
A judge usually awards alimony and spousal support based upon the need of one spouse requesting alimony and the ability of the other spouse to pay. In determining the amount of alimony, a number of factors are considered, such as length of the marriage and reasons for the divorce. If the family law judge determines there is fault, which caused the divorce, they may order alimony out of the estate of one of the spouses. However, as a general rule, property owned prior to the marriage or received through inheritance cannot be considered when deciding the amount of alimony. An exception to this exists if the property or inheritance was used throughout the marriage to support the marriage. Alabama State Divorce Code – Chapter 2, Section 30-2-52, 30-2-53]
Alimony in Alabama takes two forms: Alimony in Gross and Periodic Alimony
Alimony in gross means payments from one spouse to another that are fixed and for a definite amount. Alimony in Gross cannot be modified after it has been Ordered , unless it is successfully appealed. It is usually based upon the assets the parties have at the time of the divorce, not based on either’s future earning ability, although earning ability can be considered. Alimony in Gross is often ordered as a lump sum payment and is part of the total property settlement of the parties. A common example of Alimony in Gross is to allow one spouse to keep the vacation house, but Order a lump sum payment of $100,000 as alimony in gross. Recipients of in gross alimony should know that it can be discharged through bankruptcy of the paying spouse.
Periodic Alimony is typically a set amount of money paid to the spouse on a monthly basis based on the divorce decree. The divorce judge can order it for a set number of years, which is often referred to as temporary alimony, or it can be for the rest of the spouse’s life, often referred to as permanent alimony. Periodic Alimony is considered taxable income to the spouse that receives it, and is a non taxable deduction to the spouse required to pay. Even if periodic alimony has been ordered permanently, it can be terminated if the recipient gets remarried or moves in with someone of the opposite sex.
The Jere Beasley Report, August 2005
One of the most hotly contested issues our Birmingham divorce attorneys handle post divorce is a hearing to terminate alimony due to cohabitation. The spouse paying alimony is anxious to get their ex off their payroll and can successfully end periodic alimony by showing cohabitation. The spouse receiving alimony will often deny cohabitation, but that they maintain a separate residence from their new significant other. This is usually a judgment call for the court, requiring a skilled alimony attorney to present the proper convincing evidence. Tens of thousands of dollars (if not hundreds of thousands of dollars) usually hinge on the outcome of these alimony termination hearings.
Even if you do not seek to terminate periodic alimony completely, unlike alimony in gross, it can be modified if there has been a material change in circumstances. The most common example our Alabama divorce attorneys see is a change in the income of the alimony payor. If the payor’s income is decreased substantially, they can petition the court to modify the periodic alimony to a lower amount. Similarly, if the paying spouse begins making more money, the alimony recipient may seek an Order from the divorce court judge increasing the alimony amount.
If you have questions about alimony in your divorce give our experienced divorce attorneys a call. Alimony can be a complex topic, and you need to know what the pros and cons of alimony in gross and periodic alimony are before making any divorce agreement. At Boles Holmes White LLC we are ready to answer all of your Alabama alimony questions.