Alimony: What Do I Need to Know Before Divorce?

Learn about how alimony works and what to expect before filing for divorce.

If you're considering a divorce, you may have questions about alimony and whether you may qualify to receive alimony or have to pay support. The article will cover the basics of alimony in a divorce. If you have specific questions about your case, you should contact a local family law attorney for advice.

Alimony isn’t automatic and it isn’t ordered in every divorce. However, in cases where a spouse requests alimony and a judge determines that an alimony award is appropriate, the higher-earning spouse may have to pay alimony for years to come.

What Is Alimony?

Some states define alimony as "spousal support" or "maintenance." Whichever alimony definition your state uses, alimony involves payments made by one spouse to the other. A spousal support award can be temporary while a divorce is pending, or it may be a permanent award that’s part of a divorce decree. Alimony payments are designed to equalize the financial resources of a divorcing couple. A judge will assess if one spouse has a demonstrated financial need and if the other spouse has the ability to pay alimony.

Alimony is generally awarded in cases where the spouses have very unequal earning power and have been married a long time. For example, a judge is unlikely to award alimony if the couple has only been married for a year. In fact, some state laws prohibit alimony awards unless the couple has been married for a certain amount of time.

How Does Alimony Work?

If alimony is ordered, it can be in the form of a lump-sum payment, a property transfer, or periodic monthly payments. Periodic alimony awards are the most common and require one spouse to pay a certain amount to the other (called the “supported spouse”) each month.

Lump-sum alimony awards and alimony in the form of a property transfer are generally non-modifiable, meaning they can't be changed later and can’t be terminated or undone.

A periodic or monthly alimony award will end on a date set by the judge, or when one of the following events occurs:

  • the supported spouse remarries
  • the supported spouse cohabitates
  • either spouse dies, or
  • a significant event occurs (like a paying spouse’s retirement or a supported spouse’s new high-paying job) a judge determines that alimony is no longer necessary.

As with most issues in your divorce, you and your spouse can reach an agreement about the amount and length of time alimony will be paid. If you can't agree, you'll need to file a formal motion (paperwork) with a court, requesting alimony. The court will schedule a hearing and after the hearing, a judge will set the terms for you. Unfortunately, asking a court to make the decision, and completing an alimony hearing or trial will end up costing you time and money.

Divorce Alimony Rules

If you’re the spouse asking for support, the question of whether you qualify for alimony is usually resolved by looking at your own income or ability to earn if you aren't currently working. This is not necessarily what you are earning at the time you go to court, but it represents your earning potential. For example, if one spouse is trained as a doctor but took several years off to care for children and support the other spouse’s career, a judge will examine that spouse’s future earning potential. Perhaps that spouse needs initial support to reenter the workforce, but not necessarily a long-term alimony award.

Following a divorce, you might also be required to make some changes in your life and work. For example, if you have a part-time job that doesn't pay well, you may be required to attempt to find full-time employment in a higher-paying field. Experts called "vocational evaluators" are sometimes hired to report to the court on the job prospects for a spouse who hasn't been fully employed for a while. The evaluator will administer vocational tests and then compare your credentials with potential employers or open job positions in your area to estimate how much income you could earn.

Tax Impacts of Alimony

As part of the United States’ tax overhaul in 2017, alimony payments are no longer tax-deductible for the paying spouse and alimony payments received won’t count as taxable income for the supported spouse. This is a departure from how alimony was treated for decades. These new tax rules apply to any alimony agreement or divorce order issued after December 31, 2018.

Ultimately, these changes benefit spouses receiving alimony payments since they no longer have to pay taxes on alimony received. A spouse paying alimony loses the tax benefits of those payments. Because these tax changes can have major impacts on each spouse’s finances, many courts now consider the tax implications of alimony when deciding how much alimony is appropriate.

Each spouse should keep accurate records of any alimony paid or received. Part of the impetus behind the tax changes to alimony was to minimize tax discrepancies between spouses deducting alimony payments while some supported spouses did not recognize the payments as income (or did not receive the payments at all). In other words, some spouses on the paying or receiving end of alimony weren’t telling the truth on taxes and it was too much work for the IRS to track down the culprit.

Enforcing an Alimony Award

A spouse who is ordered to pay alimony in a divorce may wonder “when do you have to pay alimony?” The answer is whenever it is due. Alimony begins as soon as a divorce order requiring it is signed by the judge.

A spouse who refuses to make the required alimony payments can be held in contempt of court. This means the supported spouse can file a show cause action (motion) against the spouse refusing to make alimony payments. The court will set a hearing to determine why payments aren’t being made. 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 pay alimony according to the terms of the divorce decree. A court can also order a spouse to pay alimony retroactively to make up for any missed payments.

To learn more about alimony, see the Alimony section on DivorceNet.com (a Nolo network website dedicated to Divorce and Family Law topics). Nolo's Essential Guide to Divorce, by Emily Doskow (Nolo) is another great resource.

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