Divorce:

Spousal Support Eligibility

When determining if alimony payments need to be made, and if so, their amount, there are certain criteria the court will examine, including:

 1)      The income and property of both parties.  The greater the property and income a spouse has, the less likely alimony is needed; the opposite is also true, that is, the less income, the more likely a spouse will need alimony.  However, alimony is also based upon the ability of the other spouse to make the payments and is consequently more likely to be ordered when the is a substantial difference in property and income between the spouses.  The court also factors in the division of property.  Sometimes, more property will go to the less prosperous spouse, in order to reduce or event prevent the need for alimony payments.  

2)      The earning capacity of each spouse, both present and future.  Alimony is more likely if one spouse has a significantly greater earning potential than the other.  Rehabilitative alimony may be ordered to bring the earning capacities closer together.

3)      Factors lessening of earning capacity.  Certain impairments render a spouse with virtually no earning potential, which is a probable basis for permanent alimony.  Examples of this include advanced age or chronic illness. Other factors include the number of years the spouse spent working as a homemaker. This is because during this time, the homemaker delayed or gave up the opportunity for training or building job skills that could produce a higher income while the other spouse was able to increase earning capacity (because the homemaker was willing to manage the home).

4)      Presence of minor children.  Alimony is more likely to be granted if there are minor children, particularly if they are not in school full time.  Alimony may be granted so that the parent providing for the children does not need to work, or only needs to work part-time.  This issue is particularly relevant if one parent has been serving as a full-time homemaker.  Even after the children are in school, the court may grant alimony so that the parent who is taking care of the children need only work part-time. This factor is more likely to apply if, during the marriage, one of the parents had been serving as a full-time homemaker.  Again, it must be kept in mind that if the more prosperous spouse cannot afford to make the payments, then alimony will probably not be ordered. 

5)      Standard of living during the marriage.  In the event that the spouses have enough money to continue living the same lifestyle when they are separate as when they were married, the court may grant sufficient alimony to accomplish that.  However, it is not common for this to happen, as paying for two households is considerably more expensive than one.  If the luxurious married life was supported by going into debt, the court will not expect one party to go into debt to support the other.  The party seeking alimony should attempt to demonstrate that as a married couple, they lived a  prosperous and comfortable life.  This may be done with pictures, videos, receipts, etc, that indicate the nature of the family’s lifestyle. 

6)      The length of the marriage.  Generally, the longer the marriage, the greater likelihood of alimony, particularly if there is a considerable difference in the earning capacity of the spouses. Alimony is much less likely in short-term marriages (unless children are involved).  Furthermore, alimony is usually not granted for a period of time longer than the marriage, though extenuating circumstances, such as the chronic disability of the person seeking support, might change this.

7)      The degree to which one spouse supported the education of the other.  This is discussed in further depth in the section on reimbursement alimony.  The general idea is that a spouse who assists putting the other spouse through school or a training program can use that as a factor to gain alimony (in this case, the alimony is not necessary for the recipient's day-to-day support).  Spouses who actively support their partners' careers, such as through frequent entertaining or by working at no wages in the family business, can also use this as a factor in seeking alimony.

8)      Tax consequences of property division and alimony.  In the event that the payor of alimony receives some tax benefit as the result of the distribution of property, this might be a factor in favor of alimony. On the other hand, there is likely to be less alimony or no alimony if the payor of alimony must pay additional taxes because of the property division. Generally, alimony is tax deductible to the spouse who is paying it and is treated as income to the spouse who is receiving it, though an agreement otherwise may change this.  In the event that the husband and wife are in separate income brackets, the tax treatment of alimony results in a net savings of tax payments when considering the combined tax payments of the husband and wife. The money the payor will save in taxes by being able to deduct alimony from taxable income will be more than the amount of additional taxes the recipient pays on the alimony, which is treated as taxable income.

9)      In about half the state, fault.  While some states prefer to focus solely upon economic factors and not get involved in the bitterly contested details of who did what, some states take the proof of fault into consideration.  Proof of fault, for example, may block that spouse's claim to alimony, though in other states, it is considered but does not prevent the reception of alimony. 

10)  Premarital Agreements. A valid premarital agreement can determine the level of alimony that will be paid in the event of divorce.  The parties, be accepting the premarital agreement, have entered into a contract by which they waive their rights to have alimony determined by the usual rules of court.  In a number states, if this means no alimony or very low alimony to the less wealthy spouse who is in need of support, then it will not be accepted by the court; the spouse who lacks capacity for self-support is likely to be granted some alimony.

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