Jospeh Emmons: What Qualifies You For Alimony?

Alimony is money
that one spouse pays to the other for support during the divorce process or for
some period of time following a final divorce. Courts generally require the
higher earner whether that is the husband or the wife to assist the lower
earner in maintaining the marital lifestyle for at least some period of time
following a divorce.

Types of Alimony

Temporary
Alimony: Courts often award temporary alimony also known as alimony
“pendente lite,” meaning while the divorce is pending, when one
spouse requires financial support during the divorce process. This type of
award automatically ends once the divorce becomes final.
Bridge-The-Gap
Alimony: Bridge-the-gap alimony begins after the divorce is final but is
very short term, with a maximum duration of two years. The purpose is to help
the recipient spouse meet legitimate and identifiable short term needs. For
example, bridge-the-gap alimony might provide living expenses while the
recipient spouse is waiting for a house to sell, or while the recipient spouse
is completing a retraining or educational program to allow for improved
employment prospects.
Rehabilitative
Alimony: Rehabilitative alimony has the specific purpose of assisting the
recipient in acquiring education or training necessary for appropriate
employment. A spouse requesting rehabilitative alimony must submit a plan
outlining the amount of money and time required to complete the plan.
Durational
Alimony: A court might award durational alimony if other types of alimony
are insufficient to meet a spouse’s needs. The maximum term of durational
alimony is the length of the marriage in other words, if you were married for
ten years, you can’t receive durational alimony for any longer than that.
Permanent
Alimony: If the recipient spouse’s economic need is likely to be permanent,
an alimony award may be permanent as well but a judge awarding permanent
alimony must always state the reasons that another form of alimony would not be
fair and reasonable under the facts of the case. The purpose of permanent
alimony is to provide for the financial needs of a spouse who lacks the ability
to become self-supporting, at a standard of living as close as possible to the
marital standard.

Factors in Need and Ability to Pay

The court begins
making decisions on a request for alimony by considering the facts of the case
to determine whether the spouse requesting alimony meets the standard to show
the alimony is necessary. If there’s a need for alimony, the court has to also
determine whether the other spouse has the ability to pay. Unless there are
some kinds of exceptional circumstances, a court won’t award alimony if it
would leave the paying spouse with significantly less net income than the
recipient. A judge who finds both need and ability to pay next must consider
all relevant factors in deciding what type of alimony to award and for how
long. These factors include:

the financial resources of the spouse seeking
maintenance, including separate property and any award of marital property.
all sources of income, including investment
income, available to either spouse.
each spouse’s earning capacity, educational
history, vocational skills, and employability.
any time and expense required by the spouse
seeking maintenance to obtain education and training for appropriate employment.
the marital standard of living.
the length of the marriage.
each spouse’s age and physical and emotional
condition.
each spouse’s contribution to the marriage,
including homemaking, child care, education, and helping the other spouse build
a career.
any tax consequences of the alimony award, and
the responsibilities each spouse will have for
any minor children they have in common.

A court may also
consider whether either spouse committed adultery during the marriage, and
under what circumstances. Courts are most likely to take adultery into account
when one spouse’s affair caused the other financial harm. For example, if one
spouse bought lavish gifts for a paramour using marital funds, the court might
factor that into the alimony award.

Utah law applies
certain presumptions with regard to length of marriage and eligibility for
permanent alimony. Following a marriage of at least 17 years, a judge may award
permanent alimony if such an award is appropriate in light of the above
factors. After a marriage of between 7 and 17 years, there must be clear and
convincing evidence of appropriateness to justify the award. After a marriage
of less than 7 years, permanent alimony is appropriate only in exceptional
circumstances. A marriage lasts until the spouses actually file for
dissolution, not when they informally separate or stop living together.

Modification or Termination

Unless the
spouses have made a specific written agreement about when alimony ends or under
what circumstances it can be modified, when and how an alimony award can be
modified depends on the type of alimony.

A bridge-the-gap award is not modifiable under
any circumstances.
A court might modify rehabilitative alimony if
the recipient fails to comply with the rehabilitative plan or completes the
plan early.
Rehabilitative alimony, durational alimony, and
permanent alimony are all modifiable if there has been a substantial change in
financial circumstances for either spouse; however, except in extraordinary
circumstances, durational alimony can only be modified in amount, not in
duration, and even in exceptional circumstances the duration can never exceed
the length of the marriage.

Both durational
and permanent alimony end automatically if the recipient remarries or if either
spouse dies. A court can also modify or terminate an award of permanent alimony
if the recipient lives with an unrelated person in a supportive relationship.
The spouse asking for a modification on this basis must prove the supportive
nature of a relationship. The court will find consider the following:

the extent to which the two people in question
have held themselves out as a married couple. for example by using the same
last name, using a common mailing address, referring to each other as “my
husband” or “my wife”
the length of time they have lived together at a
permanent address
the extent to which they have pooled assets and
income, or otherwise exhibited financial interdependence
the extent of mutual support between them,
including support for each other’s children, regardless of legal obligation
performance of valuable services for each other,
or for each other’s company or employer
whether the two have worked together to create
or enhance anything of value
whether they have purchased property together,
and
evidence that the two have either an express or
implied agreement regarding property sharing or support.

Requirements For Alimony

There are
certain requirements for Alimony, or spousal support, which is something given
to one ex-spouse by the other ex-spouse in the form of monetary support. It’s
meant to provide the spouse that doesn’t make as much money with the money for
living expenses over and above what is also provided by the higher income spouse
in the amount of child support, if child support is provided. A judge will
determine how much if any money is going to be provided by one spouse to the
other.

Several factors go into play as the judge
makes his or her determination.

State regulations vary, but essentially, they
take into account how much the spouse receiving the money is able to earn, both
now and in future, the receiving spouse’s health and age, how long the marriage
was, what property is involved, and how the parties have conducted themselves.
A judge may not award alimony at all, and in
fact will usually only award it when one spouse has been dependent economically
on the other spouse for most of the marriage, usually a longer marriage.
Payments must be in cash, and are acceptable in
a check or money order, but can’t be given in the form of debt, services or
property.
Any payments must be set forth in a written
agreement or within divorce papers. It must be formal, such that you cannot
call what you’ve been paying informally in terms of support to your ex-spouse
anything else.

If you file a
joint tax return with your ex-spouse, you can’t claim alimony as a tax
deduction for that year. You and your ex-spouse can’t live together and call
any support you pay alimony. And even live in separate quarters within the same
residence, by the way. You must have separate quarters under different routes. When
the marriage ends, many women look to cash in that insurance policy in the form
of alimony. There are always things men can do to reduce or even eliminate
alimony.

You can win
alimony battles if you use a proven strategy and know how the game is played;
often without going to court. With a good strategy, it’s possible to negotiate
your alimony down to zero!

A spouse may
have to pay spousal support if such payment meets one or more of the main
purposes of spousal support set out in the Divorce Act. They are:

To compensate a spouse who sacrifices his or her
ability to earn income during the marriage;
To compensate a spouse for the ongoing care of
children, over and above any child support obligation; or,
To help a spouse in financial need arising from
the breakdown of the marriage.

At the same
time, spouses who receive support have an obligation to become self-supporting
where reasonable. When a married couple divorces, either spouse can ask for
spousal support under the Divorce Act. In most cases, spousal support is
requested by the spouse with the lower income. In each case, a judge must
consider several factors to determine if spousal support should be paid,
including:

The financial means, needs and circumstances of
both spouses;
The length of time the spouses have lived
together;
The roles of each spouse during their marriage;
The effect of those roles and the breakdown of
the marriage on both spouses’ current financial positions;
The ongoing responsibilities for care of the
children, if any;
Any previous orders, agreements or arrangements
already made about spousal support.

When ordering
spousal support, the courts will apply either the Divorce Act, which is a
federal Act, or the Family Law Act, which is specific. The objectives of each
act are similar, and include:

Identifying financial advantages and
disadvantages faced by the spouses that occur because of the end of the
marriage or partnership.
Fairly dividing financial costs relating to
child care, above and beyond child support.
Providing as much support as possible to help
each spouse to become financially independent within a reasonable amount of
time.

These Acts state
that spousal support should not be a factor in awarding spousal support. The
payment of support is not intended to be a form of punishment. When the courts
determine if spousal support is appropriate to order, they take into account
several factors. For example, these factors include:

The amount of time the couple lived together;
The responsibilities of each partner during this
time; and lastly
Any previous agreements or arrangements the
parties agree to regard support.

The above
factors are taken into account in all cases. If the couple is not applying for
spousal support as part of a divorce, such as when applying after the end of an
Adult Interdependent Relationship, the Family Law Act will apply. In that case,
the court takes into account the following additional factors into
consideration when making a ruling:

Whether or not either partner has a legal
obligation to support another person, including children; and
If either partner is going to be living with
someone else, or how this other person contributes to their living expenses.
The court looks at how this arrangement increases the partner’s ability to pay
support, or decreases their need for spouse support.

Child Support

Both the Divorce
Act and the Family Law Act give child support a higher priority than spousal
support. If a spouse cannot afford to pay both, it is the spousal support
amount that the courts decrease. At the same time, child support is not a
replacement for spouse support.