Alimony
Jurisdiction | Maryland |
IX. ALIMONY
Alimony is not a "lifetime pension," is gender neutral; and provides for awards of both rehabilitative and indefinite alimony. Furthermore, statutory provisions set forth criteria the court must use in establishing an alimony award.
A. Introduction
This outline sets forth both the statutory and case law of Maryland regarding alimony since the adoption of the Alimony Act of 1980 ("Act"). Prior to the enactment of the Act, alimony was defined as a money allowance payable under a judicial decree by a husband at stated intervals to his wife or former wife, so long as they lived separately, for her support and maintenance.137 This statute did not set forth criteria to be used for establishing alimony; those criteria were established at common law.138
It had been the practice at that time to award alimony for the joint lives of the parties, or until the financially dependent spouse remarried. This was based upon the belief that the wife was entitled to maintain the standard of living that the parties had enjoyed during the marriage. The Act, as contained in the proposed bill submitted by the Governor's Commission on Domestic Relations Laws to the Legislature, was founded upon the idea that, in appropriate cases, the purpose of alimony is to facilitate a transition for the parties from joint married life to single life, and not to provide a lifetime pension. The Act, which made the award of alimony gender neutral, provides for awards of both rehabilitative alimony and under certain conditions, indefinite alimony. Furthermore, the Act set forth certain criteria the trial court must use in establishing an alimony award. Family Law §§ 11-101 through 11-112 contain the statutory provisions governing alimony.
B. Child Support and Alimony Payments Exempted from Execution on a Judgment
While federal law specifies that child support is exempt from attachment for a parent's debts, alimony is not protected from collection. This subjects the entire amount of an alimony recipient's support, often the majority of his or her income, to collection. Because alimony is so substantial a part of its recipient's income, alimony recipients typically report it when applying for a home, auto, or other loans, and Maryland law requires lenders to consider alimony when determining loan eligibility of an applicant. Alimony is exempt from execution on a judgment to the same extent that wages are exempt from attachment under Commercial Law § 15-601.1(b)(1)(ii) or (2)(i) (2013 & Supp. 2019) (hereinafter Comm. Law §___).139
C. An Award of Alimony
1. The statute
Family Law § 11-101. Award—In General.
(a) When court may award—The court may award alimony: (1) on a bill of complaint for alimony; or (2) as a part of a decree that grants: (i) an annulment; (ii) a limited divorce; or (iii) an absolute divorce.
(b) Award to either party—The court may award alimony to either party.
(c) Effect of agreement—If a final disposition as to alimony has been made in an agreement between the parties, the court is bound by that agreement as the agreement relates to alimony.
(d) Institutionalized Spouse—Notwithstanding the provisions of subsections (a), (b), and (c) of this section, the court may not award alimony on a bill of complaint for alimony to the spouse of a resident in a related institution as defined in § 19-301 of the Health-General Article, if the petitioner attempts to satisfy the separation grounds for divorce under §§ 7-102 and 7-103 of this article based on the spouse's residence in the related institution.
D. Alimony Pendente Lite
1. The statute
Family Law § 11-102. Same—Alimony Pendente Lite.
(a) In general—Except as provided in subsection (b) of this section, in a proceeding for divorce, alimony, or annulment of marriage, the court may award alimony pendente lite to either party.
(b) Institutionalized Spouse—The court may not award alimony pendente lite in a proceeding for alimony on a bill of complaint for alimony to the spouse of a resident in a related institution as defined in § 19-301 of the Health-General Article, if the petitioner attempts to satisfy the separation grounds for divorce under §§ 7-102 and 7-103 of this article based on the spouse's residence in the related institution.
2. The cases
Family Law § 11-102 empowers the court to award alimony to either party in any proceeding for divorce, alimony or annulment.140 The statute does not, however, set forth any factors for the court to consider in granting temporary alimony, such as those set forth in Fam. Law § 11-106. The criteria necessary to establish a claim for temporary alimony can be found in the common law.
To be awarded alimony on a temporary basis, an applicant must present proof of the following:
(1) pendency of the matrimonial action in which the allowance is sought;
(2) the existence of a marriage between the parties;
(3) financial inability of the party to support herself or himself and/or prosecute or defend the action; and
(4) the ability of the other party to make the payments.141
The Maynard court, in quoting Nelson, cited another factor: probable cause of action or defense on the part of the applicant, with reasonable probability of success of the applicant at trial. This factor has been found to be in direct contravention of Maryland common law.142 It has been long and well established in Maryland that an award of alimony is made without inquiry into the merits of the underlying action.143
The Court of Appeals has recognized, adopted, and not strayed from the principle "that a chancellor shall not evaluate the merits of the petitioning spouse's case before ruling on a petition for alimony pendente lite."144 Citing Speropulos v. Speropulos145 and Komorous v. Komorous,146 the Court of Special Appeals stated that the "'purpose of pendente lite alimony is to maintain the status quo of the parties pending the final resolution of the divorce proceedings,' and 'the award is based solely upon need.'"147 The determination of whether or not to award alimony should be made after considering all of the circumstances surrounding the parties' financial condition, including each of the parties income, assets, earning capacity, and ability to work.148
"Temporary spousal support is based primarily on considerations of the reasonable needs of the recipient spouse, balanced against the other spouse's ability to pay."149 What cannot be considered in an award of pendente lite support are educational expenses when the educational program had not commenced prior to separation and no determination was made by the court that the course of study pursued would result in an increase in the earning capacity of the dependent spouse.150 After fully analyzing the purpose of temporary alimony, the James court found that educational expenses were more appropriately determined at a hearing on the merits when the court would address the issues of permanency and rehabilitation.
A medical doctor, who was not working as a result of major depression, was properly awarded alimony of $1,500 per month from her husband who was earning $9,013 per month.151
The current state of alimony awards is one of unpredictability. Some of the most recent cases have diametrically opposed results. It is suggested that the practitioner read in their entirety these recent cases which include Turner v. Turner, Karmand v. Karmand, Solomon v. Solomon, and Dave v. Steinmuller.152
In Steinmuller, the Court of Special Appeals upheld the trial court's award to Husband of rehabilitative alimony. Another noteworthy case is Simonds v. Simonds,153 where the Court of Special Appeals reversed a trial court award of rehabilitative alimony suggesting that an award of indefinite alimony was more appropriate.
Ridgeway v. Ridgeway154 presented the question of whether the trial court, after an appeal has been noted, can award the prevailing spouse advanced attorney's fees to defend the appeal from the court's refusal to terminate alimony. The Court of Special Appeals held that the trial court can make such a fee award and that the court properly exercised its discretion to do so in that case.
In Hart v. Hart,155 the Court of Special Appeals held that the circuit court erred in awarding a wife in a divorce case: (1) two-thirds of the proceeds from the sale of the family home following a use and possession period, and (2) indefinite alimony. The trial court had no authority, under the Family Law Article, to divide the proceeds unequally. Also, the court failed to make findings regarding the parties' future standards of living and whether their incomes would be unconscionably disparate.
3. Pendente lite alimony while case on appeal from dismissal of divorce case
Since the parties' cross-claims for divorce based on adultery were both dismissed based on recrimination in Wright v. Phipps, the alimony pendente lite had come to an end for there was no litigation then pending—to wit, there was no lite then pendente.156 A necessary predicate for alimony pendente lite is that there must be actual litigation pending and not the mere possibility of future litigation.
Once the wife filed an appeal, she could have again applied for alimony pendente lite for the duration of the appeal. The wife never made an application in this case.157
E. Existence of Ground for Divorce
Family Law § 11-103. Ground for divorce not bar.
The existence of a ground for divorce against the party seeking alimony is not an automatic bar to the court awarding alimony to that party.
F. Award Against Non-Resident Defendant
Family Law § 11-104. Alimony award against nonresident.
(a) In general—In a proceeding for a limited or absolute divorce, the court may award to the plaintiff alimony as a part of a decree granting a divorce or alimony pendente lite, if:...
(1) the bill of complaint asks for alimony and says that the defendant owns property in this State; and(b) Limit on
(2) the court lacks or is unable to exercise personal jurisdiction over the defendant.
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