History of Alimony
Alimony (also called aliment (Scotland), maintenance (England, Ireland, Northern Ireland, Wales, and Canada), spousal support (U.S., Canada) and spouse maintenance (Australia)) is a legal obligation on a person to provide financial support to their spouse before or after marital separation or divorce.
The Beginning of the History of Alimony
The Code of Hammurabi (1754 BC) declares that a man must provide sustenance to a woman who has borne him children, so that she can raise them:
If a man wish to separate from a woman who has borne him children, or from his wife who has borne him children: then he shall give that wife her dowry, and a part of the usufruct of field, garden, and property, so that she can rear her children. When she has brought up her children, a portion of all that is given to the children, equal as that of one son, shall be given to her. She may then marry the man of her heart.
Obligation arises from the divorce law or family law of each country.
Alimony is also discussed in the Code of Justinian.
The modern concept of alimony is derived from English ecclesiastical courts that awarded alimony in cases of separation and divorce. Alimony pendent lite was given until the divorce decree, based on the husband’s duty to support the wife during a marriage that still continued. Post-divorce or permanent alimony was also based on the notion that the marriage continued, as ecclesiastical courts could only award a divorce a Mensa ET thoron, similar to a legal separation today. As divorce did not end the marriage, the husband’s duty to support his wife remained intact.
Liberalization of divorce laws occurred in the 19th century, but divorce was only possible in cases of marital misconduct. As a result, the requirement to pay alimony became linked to the concept of fault in the divorce. Alimony to wives was paid because it was assumed that the marriage, and the wife’s right to support, would have continued but for the misbehavior of the husband. Ending alimony on divorce would have permitted a guilty husband to profit from his own misconduct. In contrast, if the wife committed the misconduct, she was considered to have forfeited any claim to ongoing support. However, during the period, parties could rarely afford alimony, and so it was rarely awarded by courts. As husbands’ incomes increased, and with it the possibility of paying alimony, the awarding of alimony increased, generally because a wife could show a need for ongoing financial support, and the husband had the ability to pay. No-fault divorce led to changes in alimony. Whereas spousal support was considered a right under the fault-based system, it became conditional under the no-fault approach. According to the American Bar Association, marital fault is a “factor” in awarding alimony in 25 states and the District of Columbia. Permanent alimony began to fall out of favor, as it prevented former spouses from beginning new lives, though in some states (e.g., Massachusetts, Mississippi, and Tennessee), permanent alimony awards continued, but with some limitations. Alimony moved beyond support to permitting the more dependent spouse to become financially independent or to have the same standard of living as during the marriage or common law marriage, though this was not possible in most cases.
Supreme Court On Alimony
In the 1970s, the United States Supreme Court ruled against gender bias in alimony awards and, according to the U.S. Census Bureau, the percentage of alimony recipients who are male rose from 2.4% in 2001 to 3.6% in 2006. In states like Massachusetts and Louisiana, the salaries of new spouses may be used in determining the alimony paid to the previous partners. Most recently, in several high-profile divorces, women such as Britney Spears, Victoria Principal, and Jessica Simpson have paid multimillion-dollar settlements in lieu of alimony to ex-husbands. According to divorce lawyers, aggressive pursuit of spousal support by men is becoming more common, as the stigma associated with asking for alimony fades.
Alimony: What Do I Need to Know Before Divorce?
If you’re facing a divorce, you’ll have to face reality: Alimony payments—also known in some states as “spousal support” or “maintenance”—are alive and well in the American divorce system. And if you earn substantially more money than a spouse to whom you have been married for several years, there is a good chance you will be ordered to pay some alimony. On the other hand, alimony generally isn’t awarded for short marriages or where you and your spouse earn close to the same amount.
If alimony is ordered, you will generally have to pay a specified amount each month until:
• a date set by a judge several years in the future
• your former spouse remarries
• your children no longer need a full-time parent at home
• a judge determines that after a reasonable period of time, your spouse has not made a sufficient effort to become at least partially self-supporting
• some other significant event—such as retirement—occurs, convincing a judge to modify the amount paid, or
• One of you dies.
As with most issues in your divorce, you and your spouse can agree to the amount and length of time alimony will be paid. But if you can’t agree, a court will set the terms for you. Unfortunately, having a court make the decision means there will be a trial, and that can cost you a lot of time and money.
Can Spousal Support be modified?
Spousal support orders that are issued by the court are final and enforceable by law. However, they can sometimes be altered due to unique or special circumstances that become present later on. An example of this is where the spouse receiving support payments begins cohabiting with another partner who begins supporting them financially. Another example is where one party is experiencing extreme hardship. Spousal support can also be terminated for various reasons.
How Is Spousal Support Awarded?
Spousal support is usually ordered after a divorce when either the spouse mutually agree on the payments or when the judge looks at all the relevant factors and decides that alimony or spousal support is necessary to support one spouse. Spousal support is generally awarded to a spouse who has been out of work during the marriage or makes a lower income and needs the support of the other husband even after the divorce.
The judge could order one spouse to pay the alimony payments in one lump sum if the spouse has the ability to do so or make monthly payments. Alimony payments can also be modified depending on the ability to pay. For example, if one spouse gets a significant raise in income or loses their job and cannot pay, then the spousal support is also modified since it changes the ability to pay.
What Are the Requirements for Spousal Support?
There are several requirements in order to satisfy for payments to be considered spousal support:
• The payments that are being made must be in cash or checks. Assets and paying off debts is not considered payments for support
• The payments must be provided for in a divorce or a written agreement
• Payments made prior to divorce or agreement for payments are not considered
• Alimony or spousal support cannot be claimed during the same year joint tax returns were filed
• Alimony payments cannot be paid during the time both spouses live in the same residence
• The payments must stop if one spouse marries or dies
If you expect to pay alimony
The fact you have to pay alimony to your ex-spouse doesn’t amount to a finding that you are a bad person. Consider it part of the cost of entering a marriage that you probably thought would last until death parted you, but—for reasons you didn’t anticipate—didn’t. Alimony has been the law for more than 100 years, and while it is ordered somewhat less frequently these days, there is no sign that courts are going to stop making alimony orders for good.
To learn more about Alimony Laws in your state, visit Alimony Laws by State.
If you expect to receive alimony
The question of whether you qualify for alimony is usually resolved by looking at your capacity to earn—which is not necessarily what you are earning at the time you go to court—how much your spouse earns, and your standard of living during the marriage.
You might also be required to make some changes in your life and work. For example, if you have a part-time job that doesn’t pay well, you may be required to attempt to find full-time employment in a better-paid field. Experts called “vocational evaluators” are sometimes hired to report to the court on the job prospects for a spouse who hasn’t been fully employed for a while. The evaluator will administer vocational tests and then shop your credentials with potential employers in order to estimate how much income you could earn.
Taxes and Alimony Records
For now, alimony is tax-deductible for the paying spouse and constitutes taxable income for the supported spouse. This is one of many reasons that it’s important to keep adequate records if you’re paying or receiving alimony. Note that under the 2017 Republican Tax Bill, beginning January 1, 2019, individuals paying alimony will no longer be able to deduct their payments for tax purposes, and supported spouses won’t have to include alimony in their gross income.
Until 2019, this point cannot be over-emphasized. Frequently after a divorce, the spouses dispute, or the IRS challenges, the amounts that were actually paid or received. Without adequate documentation, the payer may lose the alimony tax deduction or be ordered to pay back support if the other spouse makes a claim in court.
Here are the records each party to the divorce should keep:
Other Things To Keep In Mind Regarding Alimony
The person paying alimony should keep:
• a list showing each payment (date, check number, and address to which the check was sent)
• the originals of checks used for payments (keep in a safe place, such as a safe deposit box) — be sure to note on each check the month for which the support is being paid, and
• If you pay in cash, receipts for each payment, signed by the recipient.
Be sure to keep these records for at least three years from the date you file the tax return deducting the payments. Some lawyers and tax advisers say you should never throw away these types of records.
The spouse receiving support should make a list that shows each payment received. Include the following information:
• date payment was received
• amount received
• check number or other identifying information (for example, the number of the money order)
• account number on which any check is written
• name of bank on which check is drawn or money order issued
• a photocopy of the check or money order, and
• A copy of any signed receipt you give for cash payments.
If your spouse refuses to pay
Finally, if you secure an alimony order but your spouse refuses to make the required payments, take immediate legal action to enforce the order through a “contempt” proceeding or an “earnings assignment order.” Orders to pay monthly alimony have the same force as any other court order and, if handled properly, can be enforced with the very real possibility of obtaining regular payments. If necessary, a court may jail a reluctant payor to show that it means business.
Here are some of the Factors Considered by Judges when they are deciding Whether Alimony is Appropriate
1. The actual need and ability of the parties to pay
2. The duration of the marriage
3. The age, physical and emotional health of the parties
4. The standard of living established during the marriage and the likelihood that each party can maintain a reasonably comparable standard of living
5. The earning capacities, educational levels, vocational skills, and employability of the parties
6. The length of absence from the job market of the party seeking maintenance
7. The parental responsibilities for the children
8. The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income
9. The history of the financial or non-financial contribution to the marriage by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities
10. The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair
11. The income available to either party through investment of any assets
12. The tax treatment and consequences to both parties of any alimony award, including designation of all or a portion of the payment as a non-taxable payment
13. Any other factors which the court may deem relevant
When a share of a retirement benefit is treated as an asset for purposes of equitable distribution, the court shall not consider income generated thereafter by that share for purposes of determining alimony.
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