When deciding whether to order alimony based on the need of the recipient, the factors considered by a court are similar to the factors considered by a court when dividing property.
1. Income and Property of Each Party. The greater the income and property a divorced spouse has, the less likely it is that the spouse will need alimony. Conversely, the less income and property a spouse has, the more they will need maintenance. Payment of care also depends on the ability of one spouse to pay. Alimony is most likely when there is a substantial difference in one spouse’s property and income versus the other. If the spouses’ levels of property and income are similar, alimony is less likely. In looking at the difference in the spouses’ property, courts consider the division of property in connection with the divorce. Some courts order a larger share of the property to the less prosperous spouse to avoid or reduce alimony’s need to the less profitable spouse.
2. Earning Capacity of Each Spouse. A related factor is a present and future earning capacity of each spouse. If one spouse’s making degree is much larger than the other spouse’s earning capacity, that is a significant factor in favor of alimony payment. To the extent that the spouses’ earning abilities may come closer together by giving the spouse with lower earnings additional time to pursue training, the court may use that as a factor for granting rehabilitative maintenance.
3. Impairments in Earning Capacity. If a spouse has little or no earning capacity, that is a basis for granting alimony, probably permanent alimony. Common examples of such impairments are advanced age or chronic illness. Some courts will also note that earning capacity may be limited because of the number of years the spouse spent working as a homemaker. During that time, the homemaker spouse delayed or gave up the opportunity to train or build job skills that could produce a higher income. Meanwhile, the other spouse was able to increase earning capacity, in part, because his or her partner was managing the home. In such circumstances, some courts will grant permanent alimony to help make up for earning potentials.
4. Children at Home. The presence of young children at home is a factor in favor of granting alimony, at least until the children are in school full-time. Even after the children are in school, the court may award alimony so that the parent taking care of the children needs to work only 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. If both parents worked outside the home during the wedding, the court is more likely to expect the status quo to continue. (The Census Bureau reports that approximately 60 percent of mothers with preschool children work outside the home.) As with all types of alimony, a key factor is the more prosperous spouse’s ability to pay. If the better-off spouse has only moderate-income, alimony probably will not be ordered, or if it is, the amount will be moderate.
5. Standard of Living During the Marriage. A commonly bandied phrase about in connection with divorces of more than thirty years ago was “The wife is entitled to be supported in the style to which she has become accustomed.” One does not hear that phrase anymore, but the standard of living of the husband and wife during the marriage is a factor to be considered by the court. If the parties have sufficient money to continue the same lifestyle when they are separate as when they were married, the court may grant sufficient alimony (and property) to accomplish that. But the reality in most cases is that the money will not go as far as it did during the marriage since it costs more to support two households than one. It is to the party’s advantage seeking alimony to present testimony and exhibits reflecting a prosperous lifestyle. Displays might include pictures or videos of the family home, possessions, and vacations, perhaps accompanied by copies of receipts and checking account records reflecting the level of the family’s expenditures. If the couple’s relatively high lifestyle during the marriage were supported, in part, by incurring debt, the court would not expect that one party must continue to incur debt to help the other.
6. Duration of Marriage. The longer the marriage, the greater the likelihood of alimony, mainly if there is a significant difference in the parties’ earning power. In short-term marriages, maintenance is less likely (unless there are young children at home). Alimony usually will not be granted for a time period that is longer than the marriage. Still, it is possible in some circumstances, such as the chronic disability of the person seeking support.
7. Contributions of the Spouse Seeking Support to the Education or Career of the Other Spouse. A spouse who helps put the other spouse through school or a training program can use that as a factor to gain alimony, even if the maintenance is not necessary for the recipient’s day-to-day support. Spouses who actively support their partners’ careers, such as through frequent entertaining or through working at no wages in the family business, also can use that as a factor in seeking alimony.
8. Tax Consequences of Property Division and Alimony. If the payor of alimony receives a tax benefit from the property distribution, that can be a factor in favor of maintenance. Conversely, if the payor of care must pay additional taxes because of the property division, that could be a factor for paying less alimony or no alimony. Maintenance is generally deductible to the spouse producing it and is treated as income to the spouse receiving it (unless the parties agree otherwise). Suppose the husband and wife are in different income brackets, the tax treatment of alimony results in a net savings of tax payments when considering the husband and wife’s combined tax payments. The amount of money the payor will save in taxes by deducting alimony from taxable income will be greater than the amount of additional taxes the recipient will pay on the maintenance, which is treated as taxable income.
9. Fault. In most states, fault is not a factor in deciding whether or not to grant alimony. In those states, the legislatures and courts wish to focus on economic factors in deciding who receives maintenance, and if so, how much. As with property division in these states, the courts do not want to get in the middle of trying to determine who is more at fault. Thus, if one spouse had an affair or was considered mean to the other spouse, it will not be a factor in setting alimony. In approximately twenty states, however, fault is a factor. In some of those states, proof of responsibility by the spouse seeking maintenance completely blocks that spouse’s claim to care. In other states, fault is a factor that can be considered in setting alimony, although the presence of responsibility by the spouse seeking maintenance does not necessarily preclude alimony.
10. Premarital Agreements. As with the division of property, a valid premarital agreement can be a trump card that determines the level of alimony that will be paid in the event of divorce. Through the premarital agreement, the parties have entered into a contract by which they waive their rights to have alimony determined by the court’s usual rules. In many states, a premarital agreement that gives no alimony or very low alimony to the less wealthy spouse will not be honored if the less affluent spouse will be left with no reasonable means of support. In that circumstance, the spouse who lacks self-support capacity is likely to be granted some alimony.
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