Alimony is the most commonly known term, but spousal support and maintenance are also used. Alabama courts have certain factors to consider in the award of alimony, but the consideration of these factors is at the court’s discretion, not mandatory.
If any or all factors are considered, the weight given to each factor is, again, solely within the court’s discretion. This results in inconsistency in awards and great difficulty in determining the exposure or level of entitlement to spousal support.
This is not to say that there are not a couple of hard and fast rules, just that those hard and fast rules do not give any basis to determine an amount of alimony in advance. In Alabama, the common understanding of “alimony” is broadened by the fact that certain types of alimony are an asset distribution device in divorce.
In very general terms, an award of spousal support in a marriage of fewer than twelve years is uncommon, though not unheard of. In addition, alimony awards are most common when one spouse has been financially dependent on the other spouse through all or a large part of long-term marriages.
Certainly, there are exceptions to these general terms. There always must be a showing of entitlement to spousal support and that the payor has the ability to pay or there will be no award of alimony.
Types Of Alimony In Alabama
Pendent Lite Alimony
Pendent Lite Alimony, a specialized type of temporary spousal support, is set while the action is pending if there is a need. It ends when a final alimony order is made or when it is determined there is no basis for alimony. When a final award is substantially higher than the award of pendent lite alimony, the court can award retroactive alimony to even the scales. The opposite is not true.
If the pendent lite order is too high, there will be no reimbursement of payments ordered. Though uncommon for such a short-term alimony order, the pendent lite orders can be modified if there is a substantial change of circumstances that warrant a modification.
Rehabilitative or Temporary Alimony
Rehabilitative or Temporary Alimony awards are short-term, subject to the same standards as periodic spousal support as these awards are periodic alimony that is awarded for a shorter period of time. The period of the award is determined with a specific goal in mind.
For example, if someone needs support for two or three years so that they can transition back into the job market, rehabilitative alimony would be the mechanism used to do that. Perhaps someone needs a year to finish their degree and a few months to move into the job market. Again, rehabilitative, temporary, spousal support would be a way to accomplish this. These awards, though short-term can be modified upon a substantial change of circumstances that warrant a modification. The source of payment is generally the income of the other party but is not limited to that source.
Periodic Alimony or Permanent Alimony
Periodic Alimony or Permanent Alimony is a specified payment to be made on a specified periodic basis for a specified period of time, after which the obligation for payment ends or, if permanent, there is no automatic end to payments. For example, $500 monthly for 80 months, with a starting date ordered would be an order for periodic spousal support. If awarded as permanent alimony, for example, $500 monthly with a start date. Spousal support alimony, whether permanent or a specified term, is modifiable unless otherwise agreed or ordered. The source of payment is generally the income of the other party, with a purpose being to aid in the support of the payee spouse, but, again, is not limited to this source.
Alimony in gross
Alimony in gross is a completely different animal from the other forms of spousal support in that it is used as a vehicle for property/asset distribution. To make it just a bit more confusing, this award can be awarded in a lump sum payment, or in periodic payments over a specified period of time, making it look exactly like periodic maintenance.
Alimony in gross is not tax-deductible. The source of payment is the assets to be distributed in the divorce action. This is merely one method of distribution of part or all of the payee’s entitlement to distribution.
What Is The Estate Of A Spouse In Reference To Spousal Support Awards?
Alabama uses the word “estate” with reference to spousal support (alimony) awards and the source of payment of these awards.
In its simplest terms, the estate is that which is owned by each party, what could be otherwise referred to as separate property of that party that is not part of what will be distributed to the other party in the divorce. This would include pre-marriage property and inheritance, and here is the tricky part, it can also be used to include the property each spouse received in the distribution of property in the divorce. Therefore, the term can be dependent upon the context in which it is used.
Statutory & Other Spousal Support Considerations For Alabama Family Courts
Remember, the court is not required to consider any or all of these factors. It is completely up to the Court as to what factors are considered and how much weight each factor considered will receive. These are factors set forth both in state and those that have been applied by various courts for consideration:
- Spousal support is completely at the discretion of the court
- A showing of actual need by one spouse and the ability to pay off the other spouse
- The award of distribution of property and value of each spouse’s estate
- The length of the marriage
- Marital misconduct by either spouse, including adultery if the adultery led to the divorce (this factor applies to both the payor or payee)
- Earning the ability of the spouses
- Future prospects of the spouses
- Spouses’ health and age, sometimes even age difference
- Either spouse’s estate, meaning the property acquired by either spouse prior to marriage, by gift or by inheritance, may not be considered in determining spousal support unless the income from the property was used during the marriage to the benefit of both parties
- If the marriage has lasted ten years, the court may consider the portion of retirement earned during the marriage, and interest thereon, as part of that spouse’s estate, but not any portion of retirement or interest earned pre-marriage
- Any award to the non-covered spouse of retirement of the other spouse may not be more than one-half of the retirement benefits considered by the court
- If an alimony award is sourced from a retirement account, the entitlement to those benefits does not begin until the funds are available to the other spouse
- Other property possessed by each spouse, including type, value, and source
- The spouses’ standard of living, the potential to maintain that standard once the divorce ends, their wealth, careers, or social status
- Any other facts or factors the court thinks is relevant to the determination
Spousal Support, Divorce, & Adultery
The court can penalize an adulterous party, where adultery is grounds for divorce, in determining any alimony award, by way of higher payments and/or longer-term payment by the payor. If it is the payee found to be the adulterous party, the court reduces the payment or can go so far as to disallow spousal support which would otherwise be due. Surely the court would consider the specific facts of the case to determine if a fault should be a factor given great weight or no weight at all.
Calculating Income For Spousal Support In Alabama
This is an important issue, only briefly addressed here. If one of the spouses is underemployed or unemployed by choice, the court can assess income to them at an amount determined by the court. There is some case law involving a spouse refusing multiple promotions, with raises attached, for the purpose of keeping her income low. The court imputed income to her in the amount that she would be earning had she accepted those promotions.
The court is not limited to the income presented by each party as the income to be used in making calculations. There can be amounts added, imputed, to raise the amount to what each spouse should be earning but for their choices to not work or remain underemployed, or other reasons the court sees fit to consider. This is where the “earning ability” factor can come into play.
Alimony Considerations When Tax Issues & Bankruptcy Exist
Spousal Support, like child support, is not dischargeable in bankruptcy.
Spousal Support, except for Alimony in Gross, is tax-deductible to the payor and taxable to the payee. Thus, in calculating alimony, one wants to make the effort for the tax ramifications to be considered by the court. The court, though, is not obligated to make such considerations.
Alimony in gross is not tax-deductible because, in spite of the fact Alabama entitles it as “Alimony,” it is not spousal support within either the Federal Tax Code or the colloquial meaning of alimony. Alimony in Gross is nothing more than a property distribution, thus, a tax-free property transfer between spouses. It is not income to the party receiving it, nor a tax deduction to the party making the payment.
When Will Spousal Support End?
Alimony generally terminates at the death of either party. As the payor, this is not an issue besides the fact that there has been an untimely death. For the payee, this is a major problem as the stream of income from any periodic alimony payment will cease.
Because Alimony in Gross is a property settlement, the payee can bring action against the estate to obtain their “property” in the event of the payor’s death, but the other types of alimony do not survive death. As a result, there should be a consideration as to how any balance of alimony due will be paid upon the payor’s death. Often, because it is a cost-effective method, this is done by way of an insurance policy for the benefit of the payee upon the death of the payor. An experienced divorce attorney will discuss this with you, as there are several ways it can be handled, including which party will own the policy, whether the policy amount payable to the payee can be reduced as the alimony obligation reduces, and the exact amount that needs to be insured.
Keep in mind that payment of life insurance is a tax-free event, as long as one is not foolish enough to make the insurance payable to the decedent’s estate where it will likely be subjected to estate taxes. The party receiving alimony only really receives, in hand, the net amount of alimony, being the payment minus the taxes due on the payment of alimony. Therefore, the amount needed to be secured in some fashion is only the post-tax amount, not the entire entitlement.
Termination, Modification, Violation & Enforcement Of Alimony In Alabama
Alimony terminates by running the course of the alimony order with payment in full having been made, which would be the case for Pendente Lite, Rehabilitative, Periodic alimony, and Alimony in Gross that has been set in periodic payments. Permanent Alimony does not end by the terms of the order, though there are ways to terminate it in spite of the “permanent” title.
If the party receiving alimony marries or co-habits in a marriage-like relationship, the payor may petition the Court to terminate alimony upon proof of remarriage or cohabitation. This is considered a form of modification of the alimony order that happens to terminate the alimony obligation. This cannot be done with Alimony in Gross, which must be paid in full, and cannot be modified or changed in any way for any reason.
If there is a significant change of circumstances for either party, an action may be commenced to modify the terms of the alimony order, except, again, for Alimony in Gross.
Violation and enforcement tend to travel through the system hand in hand because if the alimony order has been violated by the payor, the payee will want the courts not just to hold the payor in violation of the order, but will want the court to enforce the order by the compelling payor to comply with the order. Remember that failure to obey any court order is contempt of court and that courts really dislike anyone disobeying its orders.
A party may commence an action for the court to find the payor in violation of the order, in contempt of court, seeking various possible penalties for violation. In the same fashion, a party, generally the payee, of course, can bring a petition to enforce the order of the court.
Alimony, in all of its forms, is impossible to determine in advance, which is the only absolute when it comes to alimony awards. The goal in alimony awards is to be fair and to try to maintain the general lifestyle of both parties if there is actually a basis for alimony to be awarded. Remember that step one is the determination of whether one party is actually in need of support. If not, no alimony, except a potential for Alimony in Gross as the mechanism for property distribution. If alimony would be appropriate on that ground, but the other party is unable to pay it, then, no alimony. Beyond that, alimony awards are a shot in the dark, with no absolutes whatsoever.
Unlike child support, spousal support (alimony) is discretionary, and the court determines the amount. No standard calculation is used, meaning that a CCL attorney is necessary for addressing alimony matters and amounts awarded which vary by county and by a judge.
Compassionate Counsel for Spousal Support (Alimony)
At Charlotte Christian Law, we support you in finding creative solutions to the challenging problems presented in alimony issues. Call us at 256-776-7015 or contact us online to set up an initial consultation concerning spousal support with our divorce attorney. We provide family law representation throughout the state and have law offices in Huntsville & Birmingham, Alabama.