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Alimony

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Alimony (also called "spousal support" or "maintenance") payments are made from one spouse to another under a separation or divorce agreement. They are meant to help an economically disadvantaged spouse continue to enjoy a similar standard of living after the marriage ends. Courts consider a variety of factors when determining the amount and duration of the alimony payments. Unmarried, cohabitating persons may also be entitled to a similar type of support called palimony.

Support awards may be distributed in a one-time payment or periodically for a pre-determined number of years; in some cases, they may even span a lifetime. Alimony and palimony awards will vary depending on the facts and circumstances of your case as well as the laws in your state. Contact a divorce attorney if you think you are entitled to receive or required to pay alimony or palimony.

Tax Consequences of Alimony

In most cases, alimony is deductible by the payer and taxable to the recipient. The Internal Revenue Service imposes five conditions for a payment to be considered alimony for tax purposes:

  • The payment is a cash payment
  • The payment is received by a "divorce or separation instrument"
  • The instrument does not specify that the payments are not for alimony
  • The payer and payee are not members of the same household when the payments are made
  • There is no liability to make the payments for any period after the death or remarriage of the recipient.*

The tax consequences relating to alimony can be significant. You may wish to consult an attorney to learn the rules as they relate to your situation.

* Source: United States Internal Revenue Code, Section 71

How Is Alimony Determined?

Historically, alimony was designed to provide an ongoing income stream so an innocent or injured spouse, usually a woman, could maintain the lifestyle the marriage afforded. Gender bending roles in the family and the workforce, as well as the advent of no-fault divorce, have changed the face of alimony.

Unless spousal support is predetermined with a legally enforceable pre- or post-marital agreement (which the court may invalidate if support is waived or otherwise inadequate), it will be decided by the court in accordance with state law. There are several factors most states consider:

  • The standard of living during the marriage
  • The length of marriage
  • The age and health of the parties
  • The time the recipient would need for education and training to become self-sufficient
  • The income and future financial prospects of the parties
  • The culpability in the demise of the marriage (this only pertains to fault-based divorces, which are less common today)

Today, many states favor temporary spousal support while the economically dependent spouse becomes self-sufficient, though the longer the marriage lasted the more likely the payments will be ongoing. Less clear is how much the award will be. Some courts strive for an equitable distribution. Others are satisfied simply if government assistance isn't required, but most often courts fall somewhere between subsistence and the marital standard of living. If the couple enjoyed a high standard of living, some states will maintain that lifestyle if there are sufficient funds to do so. It helps to have the guidance and knowledge of a family law attorney to ensure your rights are protected and that you obtain the best possible terms.


 

Types of Alimony

There are different types of alimony that address issues of fairness, equality, self-sufficiency and dependency. Each may have a different endpoint. The following is a list of the different types of alimony:

Temporary Alimony provides spousal support to the lower or non-wage earning spouse while the couple is separated. The payments may be converted into another form of spousal support after the divorce.

Palimony

In today's society more and more unmarried couples are living together. In fact, approximately 10 percent of all couples in America today are cohabitating outside of marriage, an increase of more than 1,000 percent since 1970.** When a couple separates, one of the parties may be entitled to "palimony," which is essentially an unmarried person's equivalent to alimony. In order to get palimony courts usually require:

  • Cohabitation (some states require at least 10 years)
  • Other evidence of a marital type relationship, such as spending significant time together, commingling property and/or holding themselves out to the public as husband and wife
  • An express (oral or written) or implied promise of long-term or lifetime financial support.

Not every state recognizes palimony, and those that do differ in their approach. Consult a family law attorney to learn more about whether palimony is possible for you.

** Source: David Popenoe and Barbara Dafoe Whitehead, The State of Our Unions: The Social Health of Marriage in America, 2007 (New Brunswick, NJ: The National Marriage Project at Rutgers University, 2007) p. 19

Rehabilitative Alimony is designed to help the economically dependent spouse achieve financial independence. The disadvantaged spouse may need to pursue higher education or job training or simply re-establish him- or herself in the workforce. For example, a court might award rehabilitative alimony to a woman who left her job as a health care worker to raise a family and now must update her certification before returning to the work force. Rehabilitative alimony may also be awarded to a man and is usually finite (commonly 2-5 years). However, it is possible to have payments extended depending on the language in the agreement and the laws in your state. If your rehabilitative needs (or those of your spouse) are difficult to predict, a lawyer can help you understand your legal rights.

Permanent Alimony ends only when the payer or the recipient dies, if the recipient remarries, or, in some states, cohabitates, as is increasingly common today. This form of alimony is more common in marriages of longer duration because it is intended to protect people who are unlikely to become self-sufficient, usually because of age, illness and/or limited earnings potential. On the other hand, permanent alimony can be modified or even terminated if there is a change in the recipient's needs or the payer's resources. However, if the court believes the paying spouse's earnings are intentionally decreased to evade alimony, the obligations will stand.

Reimbursement Alimony is payback to a spouse who covered an expense on behalf of the other spouse, particularly when it is significant or proximate to the divorce. Unlike rehabilitative alimony, reimbursement alimony may be awarded even when the "helper" spouse is self-supporting. For example, if one spouse helped with educational expenses and general support while the other pursued a professional degree and they divorced soon after, the "helper" does not need rehabilitation but may be entitled to compensatory payments.

Lump Sum Alimony is a fixed and, generally, permanent sum, except in the case of fraud. In the example above, the "helper" spouse could receive reimbursement alimony in the form of a lump sum at the time of the divorce. Sometimes the court or the Internal Revenue Service views a lump sum as a property settlement, not spousal support, which has very different tax consequences. Consult an attorney specializing in family law who has experience in tax laws to review the rules with you and help you avoid unfavorable tax treatment.



Did You Know?

If you are the recipient of alimony, you can ask for a guarantee of support in the event of your former spouse's death. This is commonly accomplished with a life insurance policy (naming you as beneficiary) that is of sufficient value to cover the obligation.

COBRA

If prior to a divorce you had health insurance coverage under a group plan of your spouse's employer, a federal law commonly referred to as COBRA gives you the opportunity to continue coverage for 18 months. You must proactively make a COBRA election within 60 days of the divorce.

Source: United States Department of Labor