§ 13.04 Alimony

• Jurisdiction: United States
• Publication year: 2021

§ 13.04 Alimony

All states give a divorce court the power to award post-divorce alimony⁵⁷⁷ in at least some instances, in addition to the power to award child support and to make an equitable division of the spouses' property.⁵⁷⁸ The court generally is given great discretion regarding the amount and duration of any alimony award. However, a number of statutes permit alimony only in certain circumstances. In these states, the recipient (usually the wife)⁵⁷⁹ normally must establish that (1) she does not have sufficient property, including property received in connection with the divorce, to provide for her reasonable needs, and (2) she is unable to support herself through appropriate employment, or (3) she has the custody of a very young child and, in light of these responsibilities, it would be inadvisable for her to work outside the home.⁵⁸⁰

In a few states, a spouse cannot be awarded alimony if the spouse is found guilty of adultery.⁵⁸¹ The maximum amount⁵⁸² and duration⁵⁸³ of alimony is also sometimes limited.

[1]—Types of Alimony

There are a number of different types of post-divorce alimony. For example, a court can grant lump-sum alimony, periodic alimony for a definite term, or periodic alimony for an indefinite term (normally until the recipient remarries or either spouse dies).⁵⁸⁴

Periodic alimony for a definite term normally is rehabilitative alimony. This type of alimony generally is awarded at the end of short marriages or in other situations where it appears likely that a dependent spouse can develop an earning capacity.⁵⁸⁵

Periodic alimony for an indefinite term is awarded only in connection with the dissolution of certain long marriages, normally when the recipient has been responsible for child care for decades during the marriage.⁵⁸⁶ A court can order periodic alimony and lump-sum alimony in the same divorce in some states.⁵⁸⁷ In addition to these types of post-divorce alimony, most states allow alimony pendente lite until the divorce is final.⁵⁸⁸

Some states do not have a property division statute. In these states, property division "alimony" has been created.⁵⁸⁹ A few other states have accepted "reimbursement alimony" in those situations where a spouse has earned a professional degree during marriage.⁵⁹⁰ In these states, additional types of alimony may also exist.

If one spouse does not work outside the home and the court orders support payments for the benefit of that spouse, the obligor spouse sometimes is ordered, as a part of the alimony obligation, to pay for health insurance for the other spouse.⁵⁹¹

[2]—Modification of Alimony

A periodic alimony award for an indefinite term that is incorporated into a divorce decree can be modified if the circumstances of the spouses significantly change,⁵⁹² unless this right is waived by the parties.⁵⁹³ For example, if the recipient remarries, the alimony obligation is normally terminated.⁵⁹⁴ In addition, if the needs or earnings of the parties substantially change, the amount of alimony due can be modified.⁵⁹⁵ Alimony in gross,⁵⁹⁶ property division alimony,⁵⁹⁷ and periodic alimony for a definite term⁵⁹⁸ generally are not modifiable even if the circumstances of the parties change, unless the parties so agree or the decree so provides.⁵⁹⁹

In light of these different standards for modifying the various types of alimony, it is quite important that the decree clarify the type of alimony obligation created. If this is not done, litigation frequently is required to determine whether the award can be modified.⁶⁰⁰

[3]—Factors Affecting the Decision to Award Alimony and the Duration and Amount of the Alimony Award

The determination to award alimony, as well as the duration of the alimony award, are normally significantly affected by the length of the marriage. It is considered fair to award an indefinite post-divorce support obligation only after a long marriage.⁶⁰¹ If the marriage did not endure for a significant period, courts are willing to grant, at most, an alimony award for a definite term. Courts are normally unwilling to grant long post-divorce awards after marriages of short duration, since any needs (or a low earning capacity) of a spouse generally were not caused by the marriage.⁶⁰²

Rehabilitative alimony is granted to help a spouse increase his or her earning capacity. The support normally is provided to allow the spouse to attend school. If the spouse does not intend to enroll in school or a job training program, rehabilitative alimony is not appropriate.⁶⁰³ Even if the spouse would like to attend school, rehabilitative alimony may not be possible, if the spouse is already capable of obtaining appropriate employment.⁶⁰⁴ Rehabilitative alimony is only appropriate when it appears likely that the spouse can develop an earning capacity within a certain foreseeable time. Courts seem more likely to conclude that this is possible when the spouse is relatively young; if the spouses have been married for decades and raised children and one spouse has not worked outside the home during the marriage, courts are less likely to conclude that rehabilitative alimony is appropriate.⁶⁰⁵

Many courts have accepted the view that alimony should not be awarded after a childless marriage of short duration if the wife is employed regardless whether the spouses' respective earning capacities are unequal.⁶⁰⁶ Such a result is fair, since in such situations, neither spouse normally has incurred significant career damage due to family obligations.

The amount of the alimony award is determined by the circumstances of the spouses. For example, the respective incomes of the spouses, revenue generated by property received in the divorce settlement, as well as their health, ages and needs are important factors.⁶⁰⁷ The standard of living of the spouses during the marriage, the fault of either party (depending on the state),⁶⁰⁸ and the amount of property awarded the dependent spouse at divorce can also affect the amount of alimony.

A significant alimony award is more probable in a divorce involving a long marriage where one spouse assumed child-care responsibilities and did not work outside the home for a substantial period.⁶⁰⁹ In such a situation, it is fair to impose a significant post-divorce support obligation, since the non-working spouse incurred substantial career damage due to domestic responsibilities.

An alimony award is possible, however, only if the other spouse has an adequate income to pay the award. In a number of instances, the spouse's income is insufficient.⁶¹⁰ Alimony generally may not be awarded as a percentage of the payor's income.⁶¹¹

[4]—Trends in Alimony Determinations

A periodic alimony award requires the spouses to interact after divorce, a practice frequently quite painful for both spouses. Alimony may also be difficult to collect. For these reasons, courts attempt to provide for a dependent spouse in the property division whenever possible rather than via alimony.⁶¹²

The nature of the marriage commitment and the role of women in society have changed a great deal.⁶¹³ Both of these societal trends have affected the willingness of courts to impose a post-divorce support obligation upon one spouse.

During the last few decades, the U.S. divorce rate has increased substantially. It is no longer uncommon for parties to divorce a short time after marriage.⁶¹⁴ Marriage is no longer seen as always a lifetime commitment. It is increasingly viewed as a partnership of indefinite duration, dissolvable at the will of either spouse at any time.⁶¹⁵ For this reason, transitional post-divorce support, at most, seems justified if the partnership is dissolved, particularly if the marriage did not endure for a significant period.

For example, one commentator has concluded that:

"It is clear that the traditional concept of spousal support obligations after divorce is no longer tenable in a secular society which proclaims the principle of sexual equality. Marriage can no longer be regarded as creating a lifelong alimentary relationship, since a dependency-related view of this kind is fundamentally incompatible with contemporary patterns of family relationship and female labour participation."⁶¹⁶

An increasing number of married women work outside the home.⁶¹⁷ One author conversant with the subject has estimated that as of 1990, approximately two-thirds of all wives will be employed outside the home.⁶¹⁸ Due to this trend, more wives are financially self-sufficient at divorce, making post-divorce support less frequently needed. Indeed, a 1986 Census Bureau study found that, if both spouses work, there is approximately a 20% chance that the wife earns more than the husband.⁶¹⁹

The increased female participation in the work force has had another effect upon alimony awards. Judges now are more willing to accept that a dependent spouse can develop an earning capacity...