Entitlement to Alimony:

     You must be the dependant spouse, which means you are actually substantially dependant upon the other spouse for support or substantially in need of support from the other spouse. 

         It must be equitable to award the dependant spouse Alimony.  Equitable is determined on the following relevant factors:

 ·         Financial needs of the parties;

·         Accustomed standard of living;

·       Present employment income and other recurring earnings of each party from any source;

·         Earning abilities of both spouses;

·         Separate and marital debt service obligations;

·         Living expenses of both parties necessary for support of both;

·         Each party’s respective legal obligations to support any other person. 

     Finally, illicit sexual behavior plays a determinative role in entitlement to permanent alimony.

     a.         If you are the dependant spouse and you engaged in uncondoned illicit sexual behavior during the marriage and prior to the date of separation, you will not be entitled to Alimony unless the supporting spouse also participated in an act of uncondoned illicit sexual behavior during the marriage prior to the date of separation. 

     b.         If you are the supporting spouse, your spouse shall be entitled to Alimony if you engaged in an uncondoned illicit sexual act during the marriage prior to the date of separation (and the dependant spouse is not guilty of the same conduct.)

     c.   If both spouses have engaged in an uncondoned illicit sexual act, then Alimony may be denied or awarded in the discretion of the court after consideration of all the other circumstances. 

         Amount and Duration of Permanent Alimony:

             Who decides?  The trial court decides in its discretion the amount, duration and manner of payment of Alimony.

             What are the relevant factors the court must consider in determining the manner, amount and duration of payment of permanent Alimony?

 50-16.3A(b)

     1.      The marital misconduct of either of the spouses, which may be determined by a jury (see marital misconduct under Postseparation Support. These factors are the same);

2.      The relative earnings and earning capacities of the spouses;

3.      The ages and the physical, mental and emotional conditions of the spouses;

4.      The amount and source of earned and unearned income of both spouses; including, but not limited to, earnings, dividends and benefits such as medical, retirement, insurance, social security or others;

5.      The duration of the marriage;

6.      The contribution by one spouse to the education, training or increased earning power of the other spouse;

7.      The extent to which the earning power, expenses or financial obligations of a spouse will be affected by reason of serving as the custodian of a minor child;

8.      The standard of living of the spouses established during the marriage;

9.      The relative education of the spouses and the time necessary to acquire sufficient education or training to enable the spouse seeking Alimony to find employment to meet his or her reasonable economic needs;

10. The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support;

      11. The property brought to the marriage by either spouse;

12. The contribution of a spouse as a homemaker;

13. The relative needs of the spouses;

14. The Federal and State tax ramifications of the Alimony award;

15. Any other factors relating to the economic circumstances of the parties that the court finds to be just and proper. 

 Modification/Termination of Alimony and/or Postseparation Support

             Alimony or Postseparation Support can be modified or terminated by the court upon a showing of changed circumstances. 

             Alimony or Postseparation Support terminate:

 ·         Upon the death of either party

·         Upon the remarriage of recipient spouse

·         Upon cohabitation of the recipient spouse

             What is cohabitation?  The act of two adults dwelling together continuously and habitually in a private heterosexual or homosexual relationship.  Evidence includes:

Voluntary mutual assumption of those marital rights, duties and obligations which are usually manifested by married people and which include, but are not necessarily dependant on, sexual relations.

         Your case for Alimony or Postseparation Support must be pending in the court prior to your absolute divorce. 

         The divorce, however, does not terminate the Alimony or Postseparation award already in place automatically.   

            The claim for Alimony may be heard on the merits prior to the entry of a judgment for Equitable Distribution, and if awarded, the issues of amount and of whether a spouse is a dependant or supporting spouse may be reviewed by the court after the conclusion of the equitable distribution claim.   

            When parties file separate tax returns and reside in separate households, Alimony payments in cash to or for the benefit of the recipient spouse will be considered taxable income to the dependant spouse and a deduction to the supporting spouse.  Ask about the “designated payments rule” when you desire another result.   

            If there is a court order for Alimony or Postseparation Support, current IRS policy in our district requires you to file single or head of household.  (This does not apply to private agreements outside of court.)