Alimony isn't automatic and isn't ordered in every divorce. But it isn't exactly rare either. If you're facing a divorce and are planning to request alimony, or you think your spouse might ask for it, you'll want to understand what alimony is, how judges made decisions on the issue, when you can change or stop alimony payments, and how you and your spouse might reach an agreement on the issue rather than having a judge decide for you.
Alimony is basically defined as one spouse's payment to the other—under a court order or the couple's agreement—after divorce or while a divorce case is proceeding. States use different terms for alimony, such as spousal support and maintenance, but they usually mean essentially the same thing. And state laws on alimony determine how it works and how judges decide when to award spousal support, how much, and for how long (more on all that below).
When you're thinking about alimony, it might help to know a couple of things it is not:
There are basically three types of alimony (although a few states have additional variations):
While many states use the term "permanent" spousal support for any alimony that's ordered as part of the final divorce judgment, those payments very rarely last for the rest of the recipient's life. True permanent alimony is usually reserved for situations like lengthy marriages where one spouse stayed out of the job market for many years and—because of age, disability, or other circumstances—isn't likely ever to gain financial independence. Even then, the support payments will end when the supported spouse remarries.
Even rehabilitative alimony typically only goes to former spouses who missed out on educational or career opportunities because they devoted a significant amount of time to raising children and taking care of the home. For example, judges will seldom award alimony in cases where the marriage lasted just a year or two. In fact, some state laws allow alimony awards only when the couple has been married for a certain amount of time.
State laws set out the rules for judges to consider when they're deciding whether to award alimony in any case, as well as the amount and duration of the payments. These rules are sometimes different for temporary support during the divorce and for post-divorce alimony.
When judges are deciding whether to order alimony payments after divorce, they generally must start out by deciding whether one spouse needs support and whether the other spouse has the ability to pay that support. Most states spell out a number of factors judges should consider when making that decision. Typically, these are the same considerations that go into decisions about the amount of alimony (as discussed below).
But that's not always the case. In some states, you must meet separate requirements to qualify for alimony before the judge decides how much to award. In Texas, for instance, the law presumes that spousal maintenance isn't appropriate outside of certain limited circumstances. Even in long-term marriages, Texans requesting maintenance must show they've seriously tried to earn enough or develop the necessary job skills to provide for their "minimum reasonable needs."
Once judges have decided that some amount of alimony is appropriate in a particular case, they must decide how much support to award. Almost all states spell out a number of factors judges should consider when making these decisions, such as:
Also, some states allow (or even require) judges to consider a history of domestic violence or abuse or other misconduct (such as adultery) on the part of one or both spouses when they're deciding whether to order alimony. But one factor that's generally not under consideration: which spouse filed for divorce. You may request spousal support when you file for divorce. And if your spouse was the one who started the divorce process, you may ask for alimony (usually by filing a "counter" complaint or petition).
Remember, not all of these considerations apply in every state. And in just a few states, like New York, courts must use a formula to calculate post-divorce maintenance. But judges still have leeway (or "discretion," in legalese) to order more or less maintenance if they find that the guideline amount would be unfair or inappropriate based on various considerations.
If you're asking for support, the judge will look closely at your current income or—if you aren't currently working or aren't earning enough to live on—your ability to earn. If you've been out of the workforce or underemployed for a long time, the judge is more likely to award support for as long as it will take you to become independent. However, you might have to prove you're doing what you can to get to that point, such as taking classes or other training. Sometimes, a judge will order that an expert called a "vocational evaluator" study your abilities and qualifications, compare them with potential employers, and estimate how much income you could earn.
Of course, unless you're really rich, you probably know that it's nearly impossible to maintain separate households at the same standard of living that you and your ex enjoyed while married and living together. That's especially true now that more and more divorced parents share custody of their children and have to keep bedrooms for the kids in both of their homes.
So both former spouses will probably have to make adjustments after divorce. That means that if you're the one who's being ordered to pay support, the judge might decide that you could be earning more than you're making now. For instance, if you're only working part-time, you might be required to look for a full-time job.
Beyond the circumstances that automatically terminate alimony payments (discussed below), some states have separate rules for deciding how long alimony should last. For instance, a state's law might set a time limit on maintenance payments, or it might provide a general guideline—such as half the length of a marriage or no longer than the marriage lasted. But those guidelines may vary depending on whether it was a short or long-term marriage (with 10 years as the typical measure of a long-term marriage).
Otherwise, judges generally consider the same factors when deciding how long alimony should last as they do when deciding on the amount of support. However, they might not set an absolute cut-off date when they make the original maintenance order. Especially when a marriage has lasted a long time and the alimony recipient will need some time to become self-supporting, judges may reserve jurisdiction over the issue—meaning that they retain the legal authority to extend, change or stop maintenance payments in the future.
Spouses often need some kind of maintenance payments to help them cover their living expenses while a divorce case is proceeding. Often, the rules for awarding temporary alimony are different than for so-called permanent support. That's partly because while a couple is still married, state laws require spouses to support each other.
To simplify the process of deciding the amount of temporary alimony, some states and local courts use a formula or guideline.
Usually, alimony payments are periodic, with a certain amount typically paid every month. Sometimes, a judge will order a spouse to pay a lump sum to the other spouse for maintenance, either in cash or in a property transfer (separate from the regular process of dividing the couple's marital property).
Lump-sum alimony awards can't be undone. But you may usually ask the court to change or end periodic alimony payments, unless the original court order (or agreement) specifically said that they are "nonmodifiable." However, you'll have to convince the judge that modifying or ending maintenance is justified because you or your spouse has had a significant change in circumstances, like a paying spouse's retirement or a supported spouse's new high-paying job.
Some circumstances automatically end periodic alimony, such as when the supported spouse remarries or either spouse dies. Depending on the law in your state, some other circumstances—like when the supported spouse has started living with a partner—may either end alimony or justify reducing the payments when they significantly affect the recipient's need for support.
When you're seeking spousal support, you'll generally request it in your initial paperwork when you file for divorce (or respond to your spouse's petition). If you can't agree with your spouse on the issue at some point in the process, you'll need to file a formal motion (request) asking a court to make a decision for you. The court will schedule a hearing where both sides will be able to present their positions and evidence. After considering the arguments and evidence, the judge will issue an order.
If there wasn't a request for alimony during the divorce, and it wasn't addressed in the final divorce judgment, neither spouse may go back later and ask the court for spousal support.
If your ex isn't paying court-ordered spousal support, you may go back to court to ask the judge to enforce the alimony orders. The same is true when you and your ex had an agreement on the issue that was made part of the final divorce judgment or another court order. Typically, you'll file a "show cause" action (motion), and the court will set a hearing to determine why your ex isn't following the order and what the judge should do to enforce it.
Family law courts have various tools at their disposal to enforce alimony payments, and a deadbeat spouse could face fines and penalties for failing to follow an alimony order. A judge may also order a spouse to pay alimony retroactively to make up for any missed payments.