GPSolo Magazine - March 2004

Domestic Relations Law
Surveying The Alimony Landscape

When states began considering alimony, divorces were rare and usually involved long-term marriages founded on traditional gender roles of man as sole breadwinner and woman as faithful stay-at-home mother and homemaker. Women did not have legal entitlement to share in their husband’s property, even if generated during the marriage, making alimony of much greater significance to divorcing women of the time. Over the years, with political, social, and economic change came an evolution in alimony. No longer are alimony awards limited to women.

Alimony also has expanded to include different forms: temporary, permanent periodic, lump sum, and rehabilitative. Temporary alimony, also known as pendente lite, is spousal support awarded during the pendency of the dissolution proceedings. Permanent periodic maintenance or alimony is awarded upon final judgment of dissolution in a set amount payable in increments, such as monthly, usually until the recipient’s death or remarriage or the payor’s death. Lump sum is, as the name suggests, alimony paid as a lump sum after divorce, although payment of the lump sum in installments is not unheard of. Rehabilitative alimony is designed to “rehabilitate” the recipient to become self-supporting. It usually is in an amount and duration to provide the recipient spouse with living expenses during education, training, or other aspects of becoming self-supporting as well as the cost of any such education and training.

Case-by-case analysis has become of greater import as most marriages today do not have the clear-cut facts of bygone years justifying alimony. To help with factbased analysis, all 50 states have statutory and/or case law reflecting the factors that, in their jurisdiction, are relevant when assessing an alimony claim.

Throughout the states, the alimony issue in its most basic form turns on the recipient spouse’s need and the payor spouse’s ability to pay. Expanding on the basic concept, determining alimony tends to be a two-part process. First is a determination as to whether spousal support should be awarded. This usually requires an assessment as to whether the spouse seeking alimony lacks sufficient property, including any awarded marital property, to provide for his or her reasonable needs and whether he or she can be self-supporting through appropriate employment.

If the answers to these inquiries are, respectively, yes and no, then the second step of the alimony analysis is to determine the amount and duration of the award. Within this component are numerous factors to be considered by the court, such as standard of living enjoyed during the marriage, length of marriage, the ages and health of the parties, the nature and value of the property set aside to each party, and the parties’ relative earning capacities.

Some jurisdictions specifically include fault or marital misconduct as a factor to consider. Other states specifically forbid a consideration of fault. In states that allow it, some tie fault to other issues before deeming it relevant, such as dissipation of marital assets or fault occasioned by the spouse requesting alimony. Even among states that do not allow consideration of fault, per se, dissipation of marital assets may be a separate relevant consideration. An automatic formula to a maintenance award, akin to child support guidelines, has generated some interest. The concept of codifying formulas is supported by claims of inequities that result when courts render vastly diverse alimony rulings under similar fact patterns, as well as the suggestion that predictability in awards will guide settlement negotiations.

Formula detractors point out that unlike child support, which hinges solely on the incomes of the parents, alimony is required to take into account a significantly greater array of economic and non-economic factors. Alimony guidelines are a relatively new concept that is still being tested; the vast majority of jurisdictions still address amount of alimony on a case-by-case basis.

The American Law Institute has proposed a new take on alimony wherein alimony is to be based on “loss”—i.e., loss of the standard of living enjoyed during the marriage, loss of the earning capacity of the marriage owing to spouses’ mutual decisions that one not work outside of the home, loss of a return on investment in the other spouse’s earning capacity. Once loss is demonstrated, alimony is justified under this model to compensate for loss suffered. The American Law Institute suggests that the amount of compensation be determined based on a schedule setting forth percentages of the joint incomes to be shared, thus lending some support to the view that a guideline approach has merit.

Preparing or defending against an alimony claim is very fact specific. The prudent practitioner will ascertain such factors as prior earnings history of the spouse seeking support, his or her education, work experience, length and reasons for any absence from the workforce, training, and skills. A vocational evaluator may be retained to conduct a forensic examination of the alimony claimant, to testify as an expert as to the statutory factors relevant to a maintenance award. Headhunters, placement agencies, or temporary employment services also may be used to establish employment availability and salary ranges.

If alimony is not awarded at the time of dissolution, absent some reservation of jurisdiction, a party is generally foreclosed from later seeking such an award. Further, a waiver of alimony is generally absolute, so that the court cannot later come back and redress the issue. However, if the court wishes to leave the issue open for future needs of the recipient spouse, a nominal award in permanent periodic alimony can be entered. If grounds exist at a later date to increase the award, the court will have jurisdiction.

Periodic alimony is taxable to the recipient and deductible by the payor as it is in the nature of support. Alimony is not dischargeable in bankruptcy. Most alimony awards of the permanent periodic variety are modifiable in amount or duration on the motion of either party, based on a substantial and continuing change in circumstances. As a result, contractual or nonmodifiable spousal support has gained popularity. The parties, by way of a written agreement, contract for a fixed amount of maintenance for a set duration with an absolute ban against modification unless falling within specific exceptions detailed in the written documents.

Some predict that alimony may be nearing extinction. When financial circumstances allow, many courts put great effort into fashioning property awards to minimize a need for alimony after property distribution. The Uniform Marriage and Divorce Act specifically advances this concept, calling for property disposition rather than alimony awards to provide for the financial needs of both spouses. Perhaps the day is nearing when there will no longer be alimony awards.

Brenda L. Storey is a partner with McGuane and Hogan, LLP in Denver, Colorado.

For More Information About The Section Of Family Law

- This article is an abridged and edited version of one that originally appeared on page 10 of I, Spring 2003 (25:4).

- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

- Website: www.abanet.org/family/.

- Periodicals: Family Advocate, 64-page quarterly magazine; Family Law Quarterly, quarterly journal.

- Books and Other Recent Publications: Collaborative Law; The Complete QDRO Handbook; The Divorce Trial Manual; 101+ Practical Solutions for the Family Lawyer; Balancing Competing Interests in Family Law; What Your Children Need Now: A Divorcing Parent’s Handbook.

 

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