Alimony: What Do I Need to Know Before Divorce?

Before filing for divorce, learn all about alimony (or spousal support): what it is, how it works, and how it’s enforced.

By , Legal Editor

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 decide to award it, 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.

What Is Alimony?

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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:

  • Alimony isn't a way of equalizing a divorced couple's financial situation. Instead, it's typically meant to help make sure that both spouses are able to meet their financial needs.
  • Spousal support isn't just for ex-wives. The vast majority of states have changed their divorce laws to be gender-neutral, and some women now find themselves being ordered to pay alimony to their former husbands, at least for a time.

There are basically three different kinds of alimony (although some states use other terms, and a few states have additional variations):

  • temporary alimony that lasts only until the divorce is final
  • rehabilitative support that's meant to help the recipients make the transition to supporting themselves, and
  • permanent support.

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 or other circumstances—isn't likely ever to gain financial independence.

Even rehabilitative alimony typically only goes to former spouses who missed out on educational or career advancement 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.

How Courts Decide Alimony

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. Typically, these rules are different for temporary support during the divorce and for post-divorce alimony.

Considerations When Awarding 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, such as:

  • the couple's standard of living during the marriage, and the extent to which each of them could maintain a similar lifestyle after divorce
  • each spouse's income, assets, and debts
  • how much each spouse will get when their property is divided
  • whether one spouse has a lower earning capacity because that spouse was unemployed for periods of time while taking care of the family
  • the length of the marriage
  • each spouse's age and health
  • contributions either spouse made to the other's training, education, or career advancement, and
  • any other factors the judge thinks are fair.

Also, many states allow (or even require) judges to consider a history of domestic violence or other misconduct 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. For instance:

  • In Texas, the law allows spousal maintenance awards only in limited situations and starts out by assuming that it's not appropriate outside of those circumstances. Even in marriages that lasted 10 years or more, 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."
  • In 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 court 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 a couple 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.

What About Temporary Spousal Support?

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, many local courts or states use a formula or guideline.

How Does Alimony Work?

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.

Enforcing an Alimony Award

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.

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