Alabama statutes provide the rules for awarding financial support to one spouse after a divorce or separation. The courts award alimony to give some fairness and an equal footing to both spouses as they dissolve the marriage. In a divorce proceeding, a judge will divide their marital property in what he or she believe to be an equitable split. However, that division of assets may still mean an unjust result.
The word alimony comes from the Latin alimonia, meaning “sustenance.” In divorce cases it means the sustenance or support of one spouse by the other. It comes from the common-law right of the wife to support by her husband, which right, unless the wife by her own misconduct forfeits that right, continues to exist even after they no longer live together.
Alimony deals solely with the support of the spouse, and is not to be considered a property settlement upon a dissolution of the marriage.
It may be unjust for one spouse to leave the marriage with a substantially greater earning capacity than the other spouse. To make sure that the other spouse has the opportunity to maintain a standard of living that’s similar to the one he or he enjoyed during the relationship, alimony may be ordered by the court. In such case, the court may order first spouse to pay spousal support or alimony. The specifics of the alimony, such as the amount and duration of alimony is decided according to Alabama law.
The Alabama Supreme Court has held that in determining the amount of permanent alimony, there is no fixed rule since “each case must be decided upon its own relevant facts in the light of what is fair and reasonable”
Here are the different types of alimony. In reviewing these, note that the court will determine the time limits of the alimony award, if any. Typically, the longer the marriage, the more likely it is that the court will award alimony. However, in Alabama, courts are not required to award alimony. The award of alimony is at the discretion of the court, and an appellate court review of this determination is only by the abuse of discretion standard. The Court of Civil Appeals has stated that the court’s rulings on these matters “will not be reversed unless that discretion was palpably abused.”
There are numerous factors that a court will consider regarding alimony and property division. These are laid out in detail below, but include the earning ability of the parties and their future prospects, their ages and health, the duration of the marriage, their standard of living, the marital properties and their sources, values and types, and the conduct of the parties in relation to the marriage.
Also, a court in Alabama has the power to award more than one type of alimony in the same divorce case if the circumstances of the proceedings warrant it.
Permanent alimony, as you would guess, continues for the life of the ex-spouse or until he or she remarries. Alabama courts have the discretion as to the amount of the alimony, but typically will order little or no permanent alimony if the marriage was very brief or when it looks like it will be easy for the supported spouse to find employment. When that is the case, the court is apt to set a termination date for the support.
Permanent alimony may be ordered if the recipient is handicapped and unable to work and become self-sufficient. Also, in the event that the recipient was married without ever receiving an education or employment skills and has never worked outside the home, he or she may be entitled to permanent alimony.
As the name implies, limited duration alimony is alimony that is ordered for a limited period of time. This type of alimony is used in situations where the spouse who will be receiving the alimony needs the money to maintain the marital standard of living for a period of time after the divorce. This temporary spousal support is given when the parties are separated, and the divorce is not yet final. It’s also given so that the spouse may maintain her or his lifestyle between the time the couple separates and when they divorce.
Alabama Code § 30-2-50 states that “Pending an action for divorce, the court may make an allowance for the support of either spouse out of the estate of the other spouse, suitable to the spouse’s estate and the condition in life of the parties, for a period of time not longer than necessary for the prosecution of the complaint for divorce.”
The courts in Alabama may order one spouse to pay periodic alimony to the other spouse at regular intervals, like a monthly payment, in order to provide for the support and maintenance of the less wealthy spouse. Periodic alimony can be rehabilitative.
The Alabama Court of Civil Appeals has stated that, “As a necessary condition to an award of periodic alimony, a petitioning spouse should first establish the standard and mode of living of the parties during the marriage and the nature of the financial costs to the parties of maintaining that station in life.”
The Alabama Court of Civil Appeals has defined rehabilitative alimony as a sub-class of periodic alimony that allows a spouse time to reestablish a self-supporting status— to allow a spouse to begin or to resume supporting himself or herself. Under Alabama law, periodic alimony “is to support the former dependent spouse and enable that spouse, to the extent possible, to maintain the status that the parties had enjoyed during the marriage, until that spouse is self-supporting or maintaining a lifestyle or status similar to the one enjoyed during the marriage.”
The determination whether an award of alimony should be rehabilitative is within the discretion of the court. In order to receive rehabilitative alimony, the supported spouse must propose a plan in which he or she will obtain career education or training. This award is a specific amount of support to finance the education plan. After this award, additional alimony won’t be necessary. Unless the court stipulates, this alimony may not be modified.
Reimbursement alimony is used by the court to settle and repay any contributions made during the marriage. A common example of circumstances in which reimbursement alimony may be ordered is where the supported spouse paid for the other party to become a doctor or to earn an another advanced degree, and the marriage didn’t survive long enough for both to enjoy the financial rewards of his or her education. The spouse who was put though college may wind up earning more money, so reimbursement alimony may be awarded. The reimbursement alimony will typically last until all or half of the expense of schooling is been paid back.
Lump-sum alimony may be awarded to a spouse in lieu of real estate, property, or other valuables that the couple accumulated in the marriage. Typically, the spouse who is ordered by the court to pay lump-sum alimony is not be required to pay any other type of alimony to his or her ex-spouse.
Also called “alimony in gross,” this type of alimony is intended to effect a final termination of the property rights and relations of the parties and is based on the value of the wife’s inchoate rights in her husband’s estate. Alimony in gross is defined as the present value of the spouse’s inchoate marital rights—dower, homestead, quarantine, and distributive share. It is payable out of the payor spouse’s present estate as it exists at the time of divorce.
In order to constitute alimony in gross, the award must satisfy two requirements: (i) the time and amount of payment must be certain; and (ii) the right to alimony must be vested. Just like a property settlement, alimony in gross cannot be modified and is permanent after 30 days from final divorce decree. This lump-sum alimony award is not cancelled by remarriage and may be a nontaxable transaction.
An award of alimony in gross must be made based on the value of the marital estate and the parties’ separate estates and not on the anticipated future earnings of the payor. When permanent alimony is awarded in gross, the amount varies from one-half of the spouse’s estate to one-third or less.
A judge will order this type of alimony to be paid if a couple is separated, and one spouse isn’t able to support him or herself during the separation. If there is a reconciliation, the judge will order the alimony be stopped. However, if the couple legally divorces, separation alimony will be modified by the court to be another type of alimony.
Alabama courts generally recognize that the misconduct of one of the parties to a divorce action is relevant to a determination of the amount of the alimony award. If the divorce is in favor of either spouse for the misconduct of the other spouse, the judge trying the case can make an allowance to either spouse out of the estate of either spouse, or not make an allowance as the circumstances of the case may justify. However, if an allowance is made, the misconduct of either spouse may be considered in determining the amount. Any property acquired prior to the marriage of the parties or by inheritance or gift won’t be considered in determining that amount. Alabama Code § 30-2-52.
Again, in the event that a spouse does not have enough funds for his or her maintenance, a court may award spousal support or alimony. One of the factors the court will consider is the assets of the providing spouse.
There are specific rules as to what assets may enter into this equation. For example, the court is not permitted to consider any assets acquired prior to marriage or those that are from a gift or inheritance during marriage as assets to be used to pay alimony—unless those assets were used for the benefit of both spouses during the marriage. And state statutes say that the total amount of the retirement benefits payable to the non-covered spouse cannot be more than 50% of the retirement benefits that may be considered by the court. Alabama Code § 30-2-51(b)(3). The couple is required to have been married for 10 years for this to be applicable. Alabama Code § 30-2-51(b)(1).
Alimony may be ended when a spouse remarries or lives with a member of the opposite sex. Alabama Code § 30-2-55.
A spouse seeking alimony will have to convince the court by presenting facts about the marriage relationship. In some instances, the parties are free to negotiate alimony. The court is apt to honor the agreement of the parties that includes alimony.
The marital standard of living is considered as a factor for the court in determining alimony. As a result, in preparation for a hearing on this issue, the supported spouse should collect and give to Charlotte all of the evidence of the couple’s regular expenditures during the marriage. It’s a good idea to keep documentation such as receipts, account statements, bank records, and other materials. The supporting spouse is not permitted to attempt to conceal or hinder any of the efforts of the supported spouse by refusing access to the evidence needed to establish a right to receive alimony.
In addition to the marital standard of living, the court will look at many factors when determining whether to order alimony and the amount of the award. The court may award permanent or temporary alimony (or both) to either spouse. In doing this, the court may consider, but is not limited to, the following factors:
Once the financial need of the petitioning spouse is established, the court will then consider the ability of the responding spouse to meet that need. The ability to pay may be proven by showing that the responding spouse has sufficient separate assets, following the division of the marital property and/or sufficient earning capacity to consistently provide the petitioning spouse with the necessary funds to enable him or her to maintain the spouse’s former marital standard of living. Alabama Code § 30-2-51(a).
When considering the responding spouse’s ability to pay, the court will look at all the financial obligations of the responding spouse. This includes the obligations created by the divorce judgment. The judge should also consider the effect that an award of periodic alimony will have on the financial condition of the responding spouse and his or her ability to maintain the parties’ former marital lifestyle for himself or herself.
Alabama courts have acknowledged that in most cases, however, simply due to the fact that, after separation, former spouses rarely can live as well and as inexpensively as they did as a couple. Thus, the court may find that the responding spouse can’t fully meet the financial needs of the petitioning spouse. As a result, the court will try to determine the amount the responding spouse can fairly pay on a regular basis.
The trial court will also give some weight to the history of the marriage and the various economic and noneconomic contributions and sacrifices made by the parties during the marriage. In light of those factors, the court will try to avoid leaving the parties in “an unconscionably disparate financial position.”
However, the trial court can consider whether the marriage, and its standard of living, ended due to the greater fault of one of the parties. If so, the court has the power to adjust the award accordingly. Finally, the court is expected to consider any and all other circumstances bearing on the fairness of its decision.
There are some engaged couples who want to have a bit more financial certainty in the future in case of a divorce. Couples with such concerns frequently will enter into prenuptial agreements. A prenuptial agreement, also called an “antenuptial agreement” in Alabama, is a contract that details the couple’s pre-determined division of valuable assets and their property, along with alimony. Prenuptial agreements have the ability to partially or completely restrict a spouse’s post-marital alimony obligations.
In order to be valid, a prenuptial agreement must have been “knowingly” executed and with a full disclosure of each spouse’s income and assets, or an understanding of the spouse’s interest in the estate and its approximate value.
Although most states have adopted the Uniform Prenuptial Agreement Act, which explains certain rules needed to make your prenuptial agreement enforceable, Alabama has not adopted this rule.
In Alabama, the law requires that all prenuptial agreements be in writing and signed by the spouse who is giving up his or her rights as part of the agreement, including the right to alimony. In reality, it’s best for both spouses to sign the agreement.
Both spouses must disclose their assets and debts to each other. The best way to do this is for each spouse to attach a certified financial statement to the agreement. While in Alabama, spouses are not required to provide each other with minutely detailed descriptions of every asset or debt, they do need to give a general overview of their financial situations. Because divorce can occur years after a marriage begins, this agreement helps to decrease disputes over what each spouse owned or owed prior to the marriage.
There are several valid reasons to enter into a prenuptial agreement:
When a married couple enters into divorce proceedings, the spouse who wants to enforce the prenuptial agreement is required to file a complaint in court in order to enforce the agreement. The judge will determine if the agreement will be enforced.
The spouse seeking to enforce the prenuptial agreement must prove one of two elements, that either: (i) the other spouse thought the agreement was fair, just, and equitable when he or she entered into it; or (ii) he or she entered into the prenuptial agreement freely and voluntarily, with competent independent counsel and complete knowledge of the enforcing spouse’s financial estate. Proving that the other spouse thought the agreement was fair when he or she signed it may be a hard task, so those spouses seeking to enforce prenuptial agreements typically will attempt to prove to the judge that the other spouse entered the agreement voluntarily and had the opportunity to speak with an attorney.
Coercion. The judge will strike a prenuptial agreement if a spouse coerced the other spouse to sign. Usually a spouse must threaten physical or psychological harm to the other spouse in order for a judge to invalidate a prenuptial agreement based on coercion.
Fraud. Fraud is also a justification for courts in the state of Alabama to invalidate or not to recognize a prenuptial agreement. A prenuptial agreement will not be enforced by the court where a spouse seeking to enforce the agreement made misrepresentations or lied to the other spouse concerning his or her assets or debts before they signed the pre-nup.
Legal Counsel. The court will also invalidate a prenuptial agreement if one spouse wasn’t afforded an opportunity to speak with an independent attorney. Alabama courts have upheld prenuptial agreements where the spouse receiving the agreement elects not to speak with an attorney. The spouse cannot use that as a basis for invalidating the prenuptial agreement later.
In situations where an enforced prenuptial agreement results in one spouse being in a much better financial situation will generally not be justification to invalidate the prenuptial agreement.
The court will scrutinize the agreement to determine if it is just and reasonable to the other spouse, and some judges have upheld prenuptial agreements that have left a spouse with more than 80% of the marital property.
It’s important to note that child custody and child support cannot be determined and included in a prenuptial agreement. Any details concerning child support or custodial arrangements that are included in a prenuptial agreement in Alabama will not be upheld by the court. Those issues must be addressed by a judge at the time of divorce based on the facts surrounding the case.
Periodic payments are modifiable by the court, unless clearly stipulated otherwise, based on the change in circumstances of the parties. As a result, a provision in a divorce decree for a monthly allowance for future maintenance and support does not charge the estate with those payments, but terminates upon the death of the husband… the same as where the obligation of support would have ended had there been no divorce.
However, alimony or support payments “in gross” are not to be changed or modified, without jurisdiction being expressly retained after expiration of 30 days from the date of the decree. Alimony in gross, if without reservation, becomes a vested right from the date of its rendition and survives the death of the husband. It is intended to bring about a final termination of the property rights and relations of the parties, and is an approximate appraisal of the present value of the wife’s future support and compensation for her loss of property rights in her spouse’s homestead and other estate, given to her by statute in case of her survival. These payments become vested at the time of divorce. Payments “in gross” survive the death of the husband and are chargeable against his estate.
Every award of alimony is designed to address the needs of the supported spouse. But what happens if those needs change unexpectedly after alimony has been ordered?
The court has the authority to modify or terminate the supported spouse’s alimony if there is adequate proof that his or her need no longer exists.
The Supreme Court of Alabama has held that:
An obligation to pay alimony may be modified only upon a showing of a material change in circumstances that has occurred since the trial court’s previous judgment, and the burden is on the party seeking a modification to make this showing. Thus, the moving party must show a material change in the financial needs of the payee spouse and in the financial ability of the payor spouse to respond to those needs.
Alabama Code § 30-2-55 states that “Any decree of divorce providing for periodic payments of alimony shall be modified by the court to provide for the termination of such alimony upon petition of a party to the decree and proof that the spouse receiving such alimony has remarried or that such spouse is living openly or cohabiting with a member of the opposite sex.” Alabama courts have held that cohabitation is defined as “some permanency of relationship coupled with more than occasional sexual activity between the cohabitants.”
After a divorce has been finalized and the court has issued its final judgment, one of the spouses may find that he or she needs spousal support. It could be that he or she entered into the divorce too hastily or while he or she was under duress… or the circumstances have changed for that spouse. In making its determination, the court will consider such factors as the recipient spouse’s financial needs, the amount of the estate of each spouse, the ability of the payor spouse to respond to the recipient spouse’s needs, the ability of each spouse to earn income, and the remarriage of either party. The burden of proof is on the party seeking the modification to show that there’s been a material change in circumstances.
Here is a list of some of factors that a judge will consider when a supporting spouse is requesting to reduce his or her alimony obligations. A change in circumstances must be shown to the extent that he or she would be entitled to an alimony modification. Some of the more common situations that may constitute a sufficient change in circumstances include:
Due to the level of proof that a spouse must meet to satisfy a change of circumstances, Charlotte recommends that you keep documentation such as termination records, communications with a former employer, evidence of a severance package, and medical reports if the spouse is claiming a reduction in income because of illness. In addition, maintain documentation of all assets, major debts, and expenses.
Permanent. The change in circumstances must be permanent, so the party seeking the alimony modification must also show that his or her changed circumstances are permanent, not short-term. A lack of permanence of a supporting spouse’s change of circumstances on its own typically will be an insufficient basis on which to modify support. Again, Charlotte suggests that the supporting spouse collect any documentation that would prove that a change is permanent rather than temporary. This could be documentation such as employment forecasts, articles, or other sources discussing a permanent downturn to that spouse’s chosen profession.
Involuntary or Voluntary Change. If the spouse doesn’t prove that he or she is involuntarily underemployed, the judge may impute or add in prior earnings—these would be considered evidence of his or her capacity to earn. Charlotte reminds parties that if a spouse quits his or her job or accepts lower paying position, he or she won’t be permitted to escape his or her obligation to pay support, even if there is a finding of any good or bad faith in the employment change. Likewise, the same theory applies where the initial change in employment was involuntary, but the spouse fails to take any action to remedy the situation. The judge may look at records kept by the spouse of his or her job search efforts. This information will allow the judge to form a reasonable basis to determine whether the spouse undertook efforts to remedy his or her situation. And the courts have held that increased living expenses alone, without additional justification, don’t constitute a “material change in circumstances” so as to warrant the modification of] a previous alimony judgment—especially when the expenses are increased as a result of the payee spouse’s voluntary decisions.
Mitigation. The court will also consider if the applicant has provided adequate evidence that he or she has made efforts to mitigate any perceived losses. The court will not be satisfied with the mere demonstration of a reduction in income by the supporting spouse. He or she must also provide evidence of how he or she has tried to improve his or her diminishing circumstances. Thus, a supporting spouse has the obligation of trying to find a job that won’t produce a diminished earning capacity to the detriment of the payee or providing spouse. As a supporting spouse, it is prudent to gather evidence of the names of people contacted and applications that would help mitigate losses, the frequency of those calls or applications, along with potential certification degrees that might advance marketability to recoup any lost income.
As you have seen, keeping good records is extremely important in the months prior to a supporting spouse’s petition to modify alimony. Without this, this request may quickly fail.
It is important to note that the court is not required to modify alimony because of a change in the circumstances of the parties. In weighing these factors, a court is in essence determining if the petitioning spouse has demonstrated a need for continuing monetary support to sustain the former, marital standard of living that the responding spouse can and, under the circumstances, should meet.
To help with your alimony calculations, Charlotte may ask you to list your assets, liabilities, and valuables (like jewelry, collectibles, and antiques). You also will be asked to reconstruct and list out all of the expenses for you and for your children. This Financial Affidavit may be the most important document in your divorce.
Your details expenses are absolutely crucial if you expect to be paying or receiving spousal support, since the court will consider the marital standard of living and your pre-divorce lifestyle as factors in awarding alimony.
As a general matter, you should have any document that shows how and where you spend your money. The more detail you have showing exactly what expenses you have, the stronger your case will be. Here are some examples of the most important types of documents:
This project will be an ultra-important component to support in asking for and justifying an alimony change request.
Need more information? Refer to our article on spousal support factors.
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Our Alabama Divorce Attorneys will develop a strategy to ensure that you are protected. You don’t have to go through this alone and you don’t have to be bullied by your ex. You have rights and we can help protect those rights and enforce what is best for you. Let us use our experience navigating through the family court system to obtain the spousal support that is owed to you. Let us use that experience and our compassion to find the right solution for you. Our 2 primary locations are: Huntsville, AL 35816 & Birmingham, AL 35203. Call today for a consultation at (256) 859-7277.