Alimony: What Should I Know Before Divorce?

HighbrowLawyerOctober 20, 2023

113 7 minutes read

Alimony is not automatically awarded, and it is not a requirement in every divorce proceeding. However, it shouldn’t be considered common, either. If you are going through a divorce and want to ask for alimony, or if you think your spouse might ask for it, you will want to educate yourself on what alimony is, how judges make decisions on the issue, when you can change or stop alimony payments, and how you and your spouse might agree on the issue rather than having a judge decide for you. This will help you avoid having a judge decide for you.

Table of Contents

What Is Alimony?

After a divorce has been finalized or while the divorce case is still pending, alimony is essentially defined as one spouse making payments to the other under the direction of a court order or the couple’s agreement. There are a few synonyms for alimony, the most common of which are spousal support and maintenance, but in most states, they refer to alimony differently. The alimony system is governed by state laws, which determine how it operates, as well as the criteria that judges use to determine when to award spousal support, how much, and for how long (more on all of this below).

When considering alimony, it may be helpful to be aware of a couple of things that it is not, including the following:

Alimony is not a method for making the financial situation of a divorced couple more equitable. Instead, the purpose of it is typically to assist in ensuring that both partners are able to meet their respective financial obligations.
It’s not just divorced wives who can apply for spousal support.

Due to the fact that the laws governing divorce in the vast majority of states have been updated to be gender-neutral, some women are now finding that they are required to make alimony payments to their ex-husbands, at least for some time. In addition, alimony can be awarded in same-sex divorces in the same manner as it is awarded in divorces involving husbands and wives.
Alimony can be broken down into one of these three categories, although some states allow for additional customizations:

There are two types of alimony: temporary alimony, which only lasts until the divorce is finalized, which is a form of rehabilitative support meant to assist the recipient in making the transition to self-supporting, and permanent support.

Even though many states use the term “permanent” spousal support for any alimony that is ordered as part of the final divorce judgment, those payments very rarely continue for the rest of the recipient’s life.

However, many states use the term “permanent” spousal support. True permanent alimony is typically reserved for situations such as lengthy marriages in which one spouse did not participate in the labor market for a significant number of years and is not likely to ever achieve financial independence as a result of age, disability, or other circumstances. Even under those circumstances, the payments of spousal support will end once the supported spouse remarries.

Alimony, even in the form of rehabilitative alimony, is typically reserved for exes who, as a result of devoting a significant portion of their time to the responsibilities of raising children and maintaining the household, have been unable to pursue educational or professional opportunities. Alimony is not likely to be granted by the court in situations where the couple was married for less than three years, for instance. In point of fact, the laws of some states stipulate that in order to be eligible for alimony, a couple must have been married for a predetermined number of years.

How Courts Decide Alimony

Alimony is a form of financial support that may be awarded to a spouse by a court in certain circumstances. State laws specify the factors that a judge must take into account when making this determination, including the amount, frequency, and length of alimony payments. When it comes to post-divorce alimony, these rules can sometimes be quite different from those that govern temporary support during the divorce itself.

Deciding Whether to Award Post-Divorce Alimony

When deciding whether to order alimony payments following a divorce, judges must first determine whether or not one spouse needs support and whether or not the other spouse has the financial means to pay for that support. Most jurisdictions outline several considerations for judges to make. Decisions about alimony amounts (discussed below) are typically based on the same factors.

However, this is not always the situation. To receive alimony in some states, you must first satisfy additional criteria before a judge can determine an appropriate amount. In the state of Texas, for example, the law presumes that spousal support is inappropriate unless one of several narrow exceptions applies. Maintenance recipients in Texas, even those who have been married for a long time, must prove they have made substantial efforts to increase their income or acquire the requisite skills in order to meet their “minimum reasonable needs.”

Considerations When Deciding How Much Spousal Support to Award

After determining that alimony in some form is warranted, the court must then determine the appropriate amount. Nearly every state provides a list of things judges should think about when making these sorts of calls, including:

how well each spouse was able to support their share of the household expenses during the marriage, and how well they would be able to do so independently after the split

how much money, property, and debt each partner has
how much of the couple’s assets will each partner receive
Factors such as the length of the marriage, the age, and health of both parties, whether one spouse has a lower earning capacity because of time spent out of the workforce caring for the family, and any other factors the judge deems fair.

In addition, when deciding whether to award alimony, judges in some states are permitted or even required to take into account any history of domestic violence, abuse, or other misconduct (such as adultery) on the part of either spouse. However, one important detail is often overlooked: who actually initiated the divorce. When filing for divorce, you may ask for spousal support. Alimony can also be requested in cases where one spouse initiates divorce proceedings (typically by filing a “counter” complaint or petition).

Keep in mind that not every state gives equal weight to these factors. Even fewer states, New York included, require courts to employ a formula when determining maintenance payments post-divorce. However, suppose a judge determines that the guideline amount of maintenance would be unfair or inappropriate for any reason. In that case, they retain the authority (or “discretion,” in legal parlance) to order a different amount of maintenance.

If you’re asking the court for financial assistance, they’ll take a close look at your current income or, if you’re not working or making enough money, your potential earnings. A judge is more likely to grant support for as long as it takes to become self-sufficient if you have been unemployed or underemployed for an extended period.

But you might have to show that you’re doing what it takes to get there, like enrolling in classes or other forms of training. In some cases, the judge will mandate that an impartial third party (a “vocational evaluator”) assess your skills and experience in light of the job market and provide an estimate of your potential earnings.

Unless you and your ex-spouse are filthy rich, you probably already know that it will be difficult to maintain the same standard of living you had while married and living together. Divorced parents who have joint custody of their children often maintain separate sleeping quarters for them in each of their homes.

Therefore, after a divorce, it’s likely that both parties will need to make some adjustments. If you’re the one on the receiving end of a child support order, this means the judge may determine that you have the potential to earn more money. For instance, you might have to actively seek out full-time employment if you’re currently only working part-time.

Deciding How Long Spousal Support Will Last

In addition to the situations that trigger an immediate end to alimony payments (discussed below), some states have their own rules for determining the appropriate duration of alimony payments. For instance, maintenance payments may be capped by state law or given a general guideline, such as lasting for no more than the length of the marriage or for half that amount of time. However, those standards may change based on whether the marriage was short or long (with 10 years as an average length).

Otherwise, the same considerations that judges use to determine the amount of support are also used to determine how long alimony should continue. When the initial maintenance order is made, a firm termination date may not be specified. Maintenance payments may be extended, modified, or terminated in the future at the discretion of the judge, who may reserve jurisdiction over the issue if the marriage lasted a long time and the alimony recipient needs some time to become self-supporting.

How Does Alimony Work?

Periodic alimony payments are usually made monthly. A judge may order one spouse to pay the other a lump sum for maintenance, either in cash or by transferring property.

Lump-sum Unchangeable alimony awards. You can usually ask the court to change or end periodic alimony payments unless the original court order said they are “nonmodifiable.” It would be best if you convinced the judge that modifying or ending maintenance is justified due to a significant change in circumstances, such as a paying spouse’s retirement or a supported spouse’s high-paying job.

When the supported spouse remarries or dies, periodic alimony ends. The recipient’s need for support may be significantly affected by other circumstances, such as the supported spouse living with a partner, which may end or reduce alimony, depending on your state’s law.

Spousal support is usually requested in the divorce petition or response to your spouse’s petition. If you and your spouse can’t agree on the issue, you’ll need to file a formal motion (request) with the court. Both sides will present their arguments and evidence at a court hearing. After hearing arguments and evidence, the judge will rule.