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.

Spousal support—also called "alimony" or "maintenance"—isn't automatic and isn't ordered in every divorce. On the other hand, it isn't exactly rare either. If you're planning to request alimony, or you think that your spouse might ask for it, you'll want to understand what alimony is and how judges decide to award it before you divorce.

What Is Alimony?

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Many states define "alimony" as a court-ordered payment made by one ex-spouse to the other. Courts can also award temporary spousal support while a divorce is pending

Judges award alimony in to try to equalize the financial resources of a divorcing couple. When deciding whether to award alimony, a judge will consider whether one spouse has a demonstrated financial need and if the other spouse has the ability to pay.

Judges usually award alimony in cases where the spouses have unequal earning power and have been married a long time. For example, a judge isn't likely to award alimony if the couple has been married for only a year. In fact, some state laws allow alimony awards only when the couple has been married for a certain amount of time.

How Does Alimony Work?

Although judges have to follow state law in deciding whether alimony is appropriate, they usually have a lot of discretion in deciding when and how someone has to pay it. An alimony award can be temporary—to support a spouse only while the divorce is pending—or a permanent award that's part of a divorce decree.

Alimony payments can be in the form of:

  • a lump-sum payment
  • a property transfer, or
  • periodic (monthly) payments.

In general, lump-sum alimony awards and alimony in the form of a property transfer are non-modifiable, meaning they can't be changed later and can't be terminated or undone. Periodic alimony payments may be changed when there's a significant change in one or both of the spouses' circumstances.

Periodic alimony awards are the most common and require one spouse to pay a certain amount to the other (the "supported" or "dependent" spouse) each month. 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 moves in with another person
  • either spouse dies, or
  • a significant event (like a paying spouse's retirement or a supported spouse's new high-paying job) happens and a judge determines that alimony is no longer necessary.

As with most issues in your divorce, you and your spouse can negotiate and reach an agreement about the amount of alimony and length of time it'll be paid.

If you can't agree, you'll need to file a formal motion (request) asking a court to decide alimony. The court will schedule a hearing where both sides will be able to present their positions regarding alimony. After considering the arguments and evidence presented at the hearing, the judge will issue an order.

One of the downsides of asking the court to decide is that if you're represented by an attorney, the expense of going through a hearing can be significant. Even if you're not represented by an attorney, you will have to spend a lot of time gathering evidence (such as financial documents) and preparing for the hearing.

How Courts Decide Alimony

Every state has its own guidelines on what judges should consider when deciding whether to award alimony. Most states require judges to evaluate:

  • how property is being divided in the divorce
  • the standard of living during the marriage
  • the supported spouse's ability to maintain a similar lifestyle without support
  • each spouse's income, assets, and debts
  • the length of the marriage
  • each spouse's age and health
  • contributions that either spouse made to the other's training, education, or career advancement, and
  • any other factors the judge thinks are relevant.

If you're the spouse asking for support, the court will look closely at your current income or ability to earn if you aren't currently working. When the supported spouse has been out of the workforce or has been underemployed (has an opportunity to work full- or part-time but chooses not to) for a long time, the judge is more likely to award support for at least as long as it will take the supported spouse to become independent. 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 the medically trained spouse's future earning potential. Maybe that spouse needs initial support to reenter the workforce but not a long-term alimony award.

Both spouses might have to make some life and work changes after divorce. For example, a judge might require a spouse who has a part-time job that doesn't pay well to try to find full-time employment in a higher-paying field. Sometimes, a judge will order (or the paying spouse might request) that an expert called a "vocational evaluator" make a report to the judge 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 the spouse's qualifications with potential employers or open job positions in the area to estimate how much income the spouse could earn.

Enforcing an Alimony Award

The duty to pay alimony begins as soon as an order requiring it is signed by a judge. An alimony order is enforceable by the supported spouse: If the paying spouse isn't actually paying, the supported spouse can file a "show cause" action (motion), and the court will set a hearing to determine why the paying spouse isn't following the order and what the court 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 court can also order a spouse to pay alimony retroactively to make up for any missed payments.

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